Developing e-Justice technology for use: the e-CODEX experience

This paper looks into the complexity of designing, developing and implementing a technological infrastructure for the electronic exchange of documents in cross-border judicial procedures. In the last 25 years, the introduction of ICT has been one of the main innovation drives and one of the main challenges of Justice systems all around the world. The idea is that, when properly linked to the automation of court procedures and practices (Fabri&Contini, 2001; Contini&Fabri, 2003; Velicogna, 2008; Reiling, 2010), and when properly used to support the communication between courts and parties (Velicogna, 2008; Velicogna, Errera&Derlange, 2011; Velicogna, Errera&Derlange, 2013; Lupo& Bailey, 2014) "ICT can be used to enhance efficiency, access, timeliness, transparency and accountability, thus helping the judiciaries to provide adequate services" (Velicogna, 2008: 6).In many countries, "statutory reforms have been introduced to allow the use and the exchange of electronic data and documents within national judicial systems" (Velicogna, 2007a) and ICT infrastructures, applications and services have been introduced (Contini&Lanzara, 2008; Contini&Lanzara, 2014).The e-CODEX project can be conceived as the next step, created to interconnect and make interoperable the e-justice systems developed so far within Europe and to allow the cross-border provision of e-Justice services. e-CODEX is a technological infrastructure developed by an EU Co-funded project to "Improve the cross-border access of citizens and businesses to legal means in Europe as well as to improve the interoperability between legal authorities within the EU". The project's duration is of 65 months (initially 36 months, then the project has been extended twice afterwards). The project, with a budget of EUR24m (EU contribution: EUR12m), runs from December 2010 to May 2016. It involves 20 countries (the number is expected to rise to 22 by the end of the project), mainly through their Ministries of Justice or their representatives, and also other institutions such as the Council of Bars and Law Societies of Europe, the Council of the Notariats of the European Union, and the National Research Council of Italy. The first four years of the project were directed to determine the technological and normative requirements and to develop the technological infrastructure to provide an interoperability layer for the cross-border exchange of judicial data and to allow access to cross-border e-Justice services. As a result, e-CODEX project developed an e-delivery infrastructure that uses building blocks from previous EU Large Scale Projects to allow data and documents exchange, and the validation and cross-border recognition of e-identities and e-signatures in legal procedures (Velicogna, 2014; Velicogna et al. 2015).Furthermore, e-CODEX infrastructure provides for semantic interoperability, supporting the meaningful exchange of information between national systems. In other words, through semantic mapping and semantic transformation schemas, it ensures mutual interpretation of data exchanged between national electronic systems in cross border legal procedures. Technology though is not enough to allow cross border performativity of the electronic exchange in the judicial domain. Normative provisions authorising and regulating the use of technology are required (Contini and Mohr, 2014). Confronted with the limits of existing national and EU regulations, the e-CODEX project has also drafted an agreement called the Circle of Trust that established a basis to recognise exchanged electronic information (Velicogna et al., 2014). These efforts resulted in the implementation of a technological platform capable of supporting the information exchange provided for by the regulation and of a normative agreement making it performative(Austin, 1962; Mohr &Contini, 2011) within the scope of the pilots (EU cross border procedures enabled through e-CODEX). The focus of the project is now shifting toward moving 'testing' Member States to the production environment (live cases), increase the number of working pilots and the long-term sustainability of the solutions developed by the project and of the provided services. As of July 2015, the project hasone working pilot (European order for Payment - EPO) providing live services in 5 Member States, four pilots in testing phase (EU Small Claims, Synchronous Communication applied to Business Registers, Secure Exchange of Sensitive Data, including Mutual Legal Assistance for criminal law, and civil justice/ Taking of Evidence, EURegio and the Mutual Recognition of Custodial Sentences) and 2 pilots in set up phase (Financial Penalties and European Arrest Warrant). Overall, 15 Member States were involved in the piloting. The analysis we carry out describes e-CODEX project governance structure, the technological infrastructure and then focuses on the development of the first e-CODEX Use Case, the European order for payment procedure. As e-CODEX aims to support the electronic processing of cross border legal procedures with minimal impact on national ICT systems, the service was built not only looking at the general process provided by the EU Regulation 'regulating' the European order for payment procedure, but by the creation of a shared understanding of the actual transactions and relevant data used by all parties involved in the procedure achieved through process and data modelling. At the same time, parts of the procedure, considered outside the scope of the project such as the payment of court fees or the procedure of notification which is delegated from the EU Regulation to the national rules, were not included, if not through some limited information provision. The paper provides a description of the use development process, from the initial preliminary investigation of EU cross-border judicial procedures available for piloting purposes, to the current functioning of the pilot. This includes: a) the definition of the business process modelling approach used to gather the system requirements, which was mainly based on the letter of the EPO EU Regulation and on the forms it provides; b) the discussion over member states' technological and normative installed base in terms of e-delivery and e-signature and their implications for the e-CODEX infrastructure, c) the development and testing of the actual technology in preparation for the piloting of real cases. The paper describes also the challenge faced by the partners from the perspective of developing and agreeing to the legal basis needed for the use of the infrastructure in judicial proceedings. Subsequently, the paper looks at the EPO procedure from the user perspective, uncovering the main issues that the technology does not address but that are key for the user to complete the procedure. While the result is technologically sound, the users uptake remains scarce posing at risk the significance of the project and the sustainability of the platform. The paper investigates how and why a technologically successful project is struggling with the last steps needed to become a relevant service provider for EU citizens and companies, when objectives shift from designing and developing a technically working and legally performative infrastructureto reaching a critical mass of users and ensure long term sustainability. Building on Information Infrastructure (Hanseth&Monteiro, 1997; Monteiro&Hanseth, 1996; Hanseth, Monteiro&Hatling, 1996; Contini&Lanzara, 2008; Velicogna, 2014) development and on reflective experiment in technological design literature (Hanseth, 2002; Lanzara, 1991),the paper concludes reflecting on possible development strategies that could support e-CODEX next moves.