The health crisis caused by COVID-19 has revealed the importance of having solid structures that take advantage of the possibilities offered by information technologies, so that citizens and public administrations can continue to interact, despite the difficulties that social distancing measures impose on us to contain the spread of the disease.
Thus, those organizations and entities -both public and private- that have assumed as an essential part of their strategies the digitalization of their architecture, have been able to continue providing their services and productive processes, mitigating both in their own interest and for the benefit of the citizens, the perverse effects that in social and economic terms have caused the paralysis of the country.
In the field of the Administration of Justice, the consequences are even more serious, since it is through this essential public service that the right to defense and effective judicial protection are conveyed, fundamental pillars on which our Rule of Law is based. Especially because for years our legal system has been regulating several rules referring to technological resources as a mechanism for the modernization of Justice.
The preamble of Law 18/2011 of July 5 states the legislator’s intention to implement in a generalized and mandatory manner the use of technology to improve the management of judicial offices, increase efficiency levels, reduce the cost of the service and ultimately improve confidence in the system. However, despite the importance of these objectives, they have been frustrated by an endemic lack of means and resources that the Bar Association has been demanding for some time.
In this sense, the deployment of the so-called New Judicial Office, through which the State Pact for the Reform of Justice of 2001 has been structured, has not truly reached its full potential, as it still has a marked analogical accent based on presence. As has become clear over the last few months, teleworking in the Administration of Justice has been far from the levels that would have been desirable, if we compare it with that of other administrations.
Thus, it is true that the Judges and Lawyers of the Administration of Justice have been able to telework by connecting telematically to the electronic judicial headquarters; but the vast majority of civil servants have not had this possibility, which would have placed us in a very different scenario in terms of congestion and pendency of proceedings that will take years to resolve.
Likewise, we must take into account the more than foreseeable increase in litigation due to the wide impact that the coronavirus has had on all types of legal relations, which will lead to an avalanche of lawsuits, such as: dismissals, EREs and ERTEs, Social Security procedures, insolvency proceedings of individuals and legal entities, non-payment of evictions, family proceedings, State health patrimonial liability, or challenges to sanctions imposed due to the violation of the confinement.
Taking into consideration all that has been said, and without a doubt, the effects derived from the economic and judicial paralysis of the country have brought the Administration of Justice to a critical point that should lead us to reflect on the need to bet on agile and flexible mechanisms -therefore being a good opportunity to promote mediation or arbitration-, the definitive implementation of the Electronic Judicial File and the dialogue between all legal operators.
At this time, we must direct all our efforts to ensure that the economic and structural measures needed by the Administration of Justice are accompanied by a courageous and decisive investment to ensure their effectiveness. This crisis must serve us to ensure that the preferential holding of procedural acts through telematic presence is really the rule in accordance with the provisions of Article 14 of Law 3/2020, of September 18, on procedural and organizational measures to address the COVID-19 in the field of the Administration of Justice, and not the exception – as until now – due to a systemic lack of means on the part of the judicial bodies.
Only in this way will we achieve a true digital transformation that is equal to the challenges ahead of us, placing human rights at the center as the guide of this new digital era in which we are already fully immersed.
Mª Eugènia Gay
Dean of the Barcelona Bar Association