Timisoara, Romania. Image source: Canva

1.   Status quo

Romanians anecdotally say that seeking the advice of a lawyer is like seeing a doctor: you go to both of them as a last resort. This reluctance to learn about and defend your rights is triggered by costs associated with full-fledged legal advice and, for the judicial procedure, also by the duration of it.

Traditionally, a court hearing is held in person before the court of law. In Romania, typically, a lawsuit is not decided in one single sitting, but in multiple hearings that could, in many cases, stretch for years. A lawsuit is not a sprint, but a marathon that necessitates continuous efforts from all parts: parties and judicial system alike. Parties, be they in person or duly represented, would go before the court and argue their case, present evidence, raise objections and, in essence, try and demonstrate why the court should decide in their favour. The use of technology is minimal: everything is filed with the court in hard copy, and the hearings necessitate parties’ actual presence.

During the past years, some opinions were voiced in the direction of modernising and digitalising the Romanian judicial system, but to no actual avail. While many saw the benefits of igniting the innovation engine, a lot of hindrances were postponing the process. Some stakeholders validly expressed their concerns about the difficulties of changing the existing procedures while they are still being implemented (the classic “changing the wheel on a car while it is moving”[1] dilemma) while others touched upon the lack of any need for innovation. The yesteryear model seemed to get along pretty well with the new circumstances. Until the spring of 2020, that was.

2.   New Trends

On 3^rd of April 2020, a group of visionary legal professionals organised the first online court hearing in Romania. The case was a moot one, in the sense that the parties and the matter brought forth before the court were all fictional. What was at stake here, though, was for the legal professionals to get a taste of online/remote dispute resolution before courts of law. The case was heard before the Timis Tribunal, located in Timisoara, in Western Romania.

The judge, the clerk, and parties’ representatives were scattered all over the country but managed to come together for this exercise via the Zoom app. Timis Bar Association purchased the license for the Zoom app and the computer terminal to be used by both the judge and the clerk.

While the hearing only touched upon a procedural objection raised by one party, one can still imagine how this method can be used to hear more complex matters addressing convoluted aspects on the merits of the case.

This exercise was meant to tick certain boxes all the more required by the new pandemic context:

• protecting the health of legal professionals and, mostly, legal industry stakeholders;
• using digital means to ensure access to justice and proper conduct of a hearing before a court of law;
• deciding on some procedural objections raised by one party without any of the parties’ representatives having to be present in person before the court;
• respecting the solemnity required by the procedures before a court of law whilst ensuring proper communication;
• safeguarding compliance with the publicity principle and transparency presumption that govern procedures before a court of law.

Basically, what was needed for this process to run smoothly was good Internet connection, computer, tablet, or phone equipped with a microphone and webcam, and a licensed video conferencing service/app. In this case, the court opted for the Zoom app. Lately, Zoom came under major scrutiny due to some security breaches and privacy warnings, culminating in companies such as SpaceX and Google, law firms or even Bar Associations (the Hungarian one, for example), banning Zoom altogether. But, for what it is worth, there is no scarcity of online video conference platforms. Apps such as Skype for Business, Skype, Microsoft Team, Google Meet, or WebEx are just a few equally compelling examples.

Shortly, on 7^th of April 2020, the Bucharest Tribunal (both a court of first instance and appellate court) launched the Videoconferencing section on its website to be used by and large for civil cases. The interested party (be it an actual party to a lawsuit or its representative) must first fill in a consent form attesting his/her willingness to participating in the hearing via this option. Upon considering parties’ opinions, each judge eventually chooses whether or not to opt for the Videoconferencing tool. Nonetheless, the participants must abide by a set of rules such as order and solemnity owed to the court, just like in offline hearings. In principle, any piece of written evidence must be priorly sent to the court. Witnesses and cross-examinations cannot be heard via the Videoconferencing option, but only in person before the court. The hearings will be recorded and can be sent to the parties at their own cost.

Prior to both these experiments, the High Court of Cassation and Justice (Romania’s Supreme Court) has also decided to use videoconferencing tools for its 30^th  of March 2020 hearings. These hearings were scheduled for determining a unitary interpretation of specific legal provisions previously construed differently by courts of law. The same tools were used by the judges of the High Court to decide on a general interpretation of certain legal provisions that have not been previously settled by the High Court. Given the high number of judges (over 67) and auxiliary staff members that ought to have participated in the hearings and the subsequent deliberations, opting for using the videoconferencing option reveals itself as the only sensible solution. However, these hearings have an extraordinary nature and were not supposed to engage parties or an audience. This exercise benefited from the digital infrastructure built for the High Court as early as 2012.

All three of these exercises had their basis in the Presidential Decree no. 195/2020 declaring a state of emergency on the Romanian territory and, among others, suggesting that, for the time being, and whenever possible, courts should use digital means to organise hearings. It seems that courts have swiftly adapted to the new circumstances. In reality, these initiatives owe their materialisation to voices that have long been advocating for the modernisation of the Romanian judicial system.

The challenge will now be to sustain these actions and continue the innovation process and digitalise the Romanian judicial system once the pandemic crisis is over. The task will be a demanding one because, unlike alternative dispute resolution (ADR) methods such as arbitration and mediation, the procedural rules governing the activity of the courts of law are largely different and mainly strict.

3.   Implications

Systemic forms of digitalising the judicial system have long been anticipated worldwide but seldomly taken seriously in Romania. The advent of this pandemic threw everything upside down, traditional and conservative opinions included. Now, to think that online court hearings might become the new norm in Romania could appear somehow idealistic.

Part of the digitalisation effort, online court hearings are construed to be just one element of the larger online dispute resolution (ODR) mechanism. ODR entails that the entire procedure before a court of law be completely digitalised, starting with document submission, producing of evidence, oral hearings, and decision rendering. We will be further analysing the role of an ODR practitioner in a subsequent article (from our #FutureProofLegal series).

While ODR can be admitted in certain low-value civil and commercial proceedings, it is still believed to be outside the realm of criminal proceedings. True, criminal cases have too complex of a nature to be settled purely via online means. This does not mean, however, that some routine aspects such as filing and discovery of documents cannot be done online.

Additionally, complex and high-value cases cannot, naturally, be settled exclusively online. However, the reasoning above can be transplanted here as well: while certain routine aspects of court activity can be disaggregated to be handled online, more convoluted aspects that need face-to-face intervention can be conducted in a fashion similar to the already existing ones. This model is not singular, but of ADR heritage: in some large-scale arbitration trials, submissions are made by parties, and certain decisions are sent by arbitrators via email but aspects that need human interaction are still conducted in a traditional manner.

Thus, online hearings can be well suited for the procedures that allow an ODR mechanism, as well as for those that fall outside the ambit of the online adjudication system.

But, for the sake of the argument, presuming that online court hearings and, perhaps even full-fledged ODR mechanisms, become a norm especially in civil cases, the advantages of such a solution are well worth considering:

• increased access to justice, by expanding the availability of the justice service to a widened pool of people;
• considerable costs savings, not only for individual litigants but for the court system as well:
  • acting as a filter, the online mechanisms would allow fewer cases to reach the traditional, offline courts. And, the ones that would indeed be heard before a physical court of law would greatly benefit, financially and duration-wise, from the digital network already in place;
  • for litigants, this would represent a more accessible, less costly, speedier, and perhaps easier to understand (even without lawyers’ assistance) route to settling their case[2]. That is because, to be completely functional, the user experience for online tools must be legally straightforward and technological flawless.

The advantages listed above are non-exhaustive, time and practice will reveal even more.

Now, Romanian legal professionals are reluctant, justifiably so up to a certain point, in conceding for online court hearings for fear they might be:

• defeating the principle of so-called orality that, by and large, indicates that pleadings and oral debates are quintessential to due process exigencies;
• tempering with the principle of publicity, another due process guarantee touching upon the transparency requirements applicable, as a rule, to all lawsuits in a democratic society;
• limiting the direct contact between the litigant and his/her lawyer, interfering with lawyers’ role in the judicial system.

Now, all these are valid objections, but I think we look at this problem from the wrong angle. It is not about limiting and crippling due process but rather an instance of improving access to justice. Given the prohibitive costs associate with a lawsuit, there are probably more people with access to the Internet than people that have in fact access to justice. Essentially, justice is more of a social service rather than just a place[3], and we should be striving to see this materialising.

The hesitation to reinvent and adjust our system is well justified but, if anything, should push us to carefully consider rather than discard the idea altogether. A few decades ago, no one believed that groceries could be done otherwise than in brick-and-mortar shops. In the 1990s, online shopping was seen as “just another component of the “infohypeway” that was the Internet”. Fast forward 30 years in the future: in 2018, it was estimated that 1.8 billion people worldwide purchased goods online. Now, in the reality of the COVID-19 pandemic, here’s a headline: “A sector soars: Online grocery shopping numbers are officially crazy. The growth we’re seeing was supposed to happen over four years, not two weeks.“. Will this skyrocketing evolution be paralleled in the law industry? What if this dichotomy between online and “brick-and-mortar” courts is just one embryonic stage of our judicial system’s metamorphosis?  After all, there are some examples worldwide: from eBay adjudication method[4] to Civil Resolution Tribunal (CRT) in British Columbia, Canada, to UK Financial Ombudsman Service (FOS) and European Online Dispute Resolution (ODR) platform, we can see that initiatives at the forefront of legal innovation are well-received by society, paving the road for similar, perhaps even bolder ones.

4.   Conclusion

It is beyond the remit of this article to suggest detailed solutions to the intricate challenges of the judicial system’s digitalisation. Some of the ideas expressed herein might have required a more in-depth analysis. But this was neither the time nor the place for an elaborate scrutiny of the matter. In essence, this article represents a call for future work rather than a blueprint.

What is worth noting, though, is that, worldwide, people and institutions have started to seek innovative solutions to acute, pressing problems.

The world as we know it is changing at a staggering pace. While a mere hypothesis before, we might, in effect, have to rethink and reinvent our institutions to preserve the values we have fought for and defended for centuries. Romanian judicial system’s response to this apparent Black Swan is praiseworthy and gives us hope that those in charge understood that the unknown could only be tackled with matching boldness and creativity.

Do you think that CEE justice systems are ready for digitalisation? Is the Romanian system going to continue this new trend? Let’s discuss!

As always, thank you for reading! ?

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[1] Richard Susskind, “Online Courts and the Future of Justice”, Oxford University Press, 2019, page 90

[2] Richard Susskind, “Online Courts and the Future of Justice”, Oxford University Press, 2019, page 101

[3] Richard Susskind, “Online Courts and the Future of Justice”, Oxford University Press, 2019, page 102

[4] Richard Susskind, “Online Courts and the Future of Justice”, Oxford University Press, 2019, page 98