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Online Courts – an international perspective

Silvia Uscov
Silvia Uscov

Since there are many Romanian legal professionals who are still debating the benefits and disadvantages of online courts, whereas we do not have a specific legislation that covers this issue, I thought it would be interesting to share with you some of the views of legal professionals around the world with whom I am in contact and who were kind enough to take the time and answer to my questionnaire.

The answers cover a subjective perspective and do not reflect the views of the institutions/authorities/law firms in which they practice.

1. Your background and your position and place of work/study at this moment (more details on this aspect would be better)

Quazi Omar Foysal: University Lecturer with License to Practice

Justine Bernatchez: Legal consultant, International Criminal Court

Anurita Varma: Litigation Attorney at Call & Jensen in Newport Beach, CA

Irina Mocanu: I went to law school at Paris 1 Pantheon-Sorbonne and University of Bucharest. After graduating from UB, I moved to the US where I have pursued an International Arbitration LLM at University of Miami. As of April 2020, I have passed the New York Bar Exam and currently looking for professional opportunities.

Caio Henrique Godoy da Costa: Specialization in International Criminal Law for Young Penalists on Human Rights and Criminal Justice, The Siracusa International Institute for Criminal Justice and Humans Rights, Italy, 2019. Specialization in Criminal Law, Escola Paulista da Magistratura, 2018. Bachelor in Law, Pontifícia Universidade Católica de São Paulo, 2016. Associated Lawyer at Massud, Sarcedo e Andrade Law Firm.

Dr Robert Doya Nanima: I am a postdoctoral research fellow at the Dullah Omar Institute of the University of the Western Cape, Cape Town, South Africa.

Dejan Kadiev: Currently working as an attorney at law practicing in many legal fields (criminal law, property law, obligation law, contract law, labour law, family law). Previously a volunteer at the Criminal Court.

Taher Aboueleid: Judge at Cairo Court of Appeal, Egypt.

2. Your country of origin

Quazi Omar Foysal: Bangladesh

Justine Bernatchez: Canada

Anurita Varma: USA (parents are from India)

Irina Mocanu: Romania

Caio Henrique Godoy da Costa: Brazil

Dr Robert Doya Nanima: Uganda

Dejan Kadiev: Republic of North Macedonia

Taher Aboueleid: Egypt.

3. The country where you currently live in

Quazi Omar Foysal: Bangladesh

Justine Bernatchez: Canada and Netherlands (6 months/6 months)

Anurita Varma: USA

Irina Mocanu: USA

Caio Henrique Godoy da Costa: Brazil

Dr Robert Doya Nanima: South Africa

Dejan Kadiev: Republic of North Macedonia

Taher Aboueleid: Egypt.

4. Does your country (country of origin/country where you currently live) have a legal framework for online courts? If so, please, let us know a couple of things about it, in terms of procedure, application used for it, use in civil/criminal procedures etc.

Quazi Omar Foysal (Bangladesh): Government of Bangladesh promulgated the Use of IT in the Courts Ordinance 2020 in order to facilitate the virtual hearing in both civil and criminal proceedings. It seems to facilitate the resolution of some urgent criminal cases relating to arrests and detention in the lower courts and some urgent writs.

Justine Bernatchez (Canada): In Canada, Québec there is the possibility to use online court. They are mostly used for criminal procedures. In some places, there is a hybrid system, so the lawyers, judges and people from the Registry are in Court, and the accused, journalists and victims are online.

Some civil procedures are also online, but only for the emergencies. Everyone is connected to a secured platform.

Anurita Varma (USA): Yes. There is an existing online framework that provides for filing of documents (briefs/motions/etc.), and information regarding courtroom, judges’ rules, docket.

Irina Mocanu (USA): As for the US judicial system, normally there is no legal framework for online courts. However, they have implemented a very well-functioning system for online hearings because of the Covid-19 pandemic. Actually, it was for the first time when the Supreme Courts had online hearings. The hearings were also available for the public on diverse news platforms online. Actually, I also listened to some of them (the most interesting in my opinion was the trademark case regarding “Booking.com”. Even if the case itself was very interesting, I had troubles sometimes listening to the attorneys because of the poor connection.

Caio Henrique Godoy da Costa (Brazil): Yes, our courts already allow some specific cases to have an online trial. The online trial lasts, in general, seven days. On the first day, the Judge-Rapporteur releases his report and votes for the other members of the Court in their intern system. Those who disagree can either vote differently and release their opinion to the others in the system or request that the case be taken to regular trial, in the presence of all the members, where they can actually discuss it. If, at the end of the seven days, no one exposed a different opinion from the Judge-Rapporteur, his decision is automatically considered unanimous. The other judges do not need to actually vote agreeing. Their silence is considered a favorable opinion. There are some specific cases that can be trialed in this system.

After the pandemic started, our courts adopted a new kind of online trial for the other that don’t fit on this first system. In this model, which is basically a regular trial session, but virtually (using Zoom, Microsoft meetings or similar software), any person can watch the sessions online, live on Youtube, and the lawyers are allowed to participate and make oral defenses. There’s also space for real debate between the judges. (PS: only the Supreme Court and Superior Federal Court sessions are broadcasted).

A similar system is being used also for hearings (in first instance cases), allowing all the parts (judge, prosecutor, lawyers, defendant and witnesses) to participate from their houses.

Dr Robert Doya Nanima (Uganda): Uganda has a legal framework for the use of online courts. They are referred to as the Visual-Audio Link. Adopted under the Judicature (Visual-Audio Link) Rules. There are other laws and guidelines that are quite instructive in the Covid-19 era. These include the following:
– Guidelines for online Hearings in the Judiciary of Uganda, Office Instrument Number 2 of 2020, dated 29 April 2020
– Data Protection and Privacy Act 2019
– The Computer Misuse Act, 2011
– The Electronic Transactions Act, 2011

The Constitution (Integration of ICT into Adjudication Processes for Courts of Judicature) (Practice) Directions Legal Notice 6 of 2019.

Dejan Kadiev (Republic of North Macedonia): There is no legal framework for online courts in North Macedonia. There is only a possibility for a witness to be interrogated via video conference.

Taher Aboueleid (Egypt): There is a new law to regulate electronic litigation in economic courts and it will come into force next year.

5. Pros for online courts

Quazi Omar Foysal (Bangladesh): It provided an easy access to the court proceedings without going to the court. I have a practical example. My other two brothers are lawyers too. On the last day before the lockdown, he had a case for bailment. It was a harassment case and apparently a situation of double jeopardy. But the judge did not grant the bail and sent his client to the custody. Unfortunately, father of that client works as concierge in our apartment. So, lockdown compelled him to remain in the jail for about 2 months without any scope of review. Thus, this Ordinance relieved both my brother, as lawyer, and his clients.

Justine Bernatchez (Canada):
– There is the possibility to continue the cases event if everything is stopped.
– To ensure that the accused are not judge in absentia.
– It is less expensive to do the procedures online than in person.

Anurita Varma (USA): Efficiency, less costly to parties.

Irina Mocanu (USA): In my area of expertise (international arbitration) online hearings are quite frequent. I believe one big advantage of this is that it gives people more freedom in terms of setting the hearings. Having this possibility, parties don’t have to necessarily travel the world in order to meet.

Caio Henrique Godoy da Costa (Brazil): Online courts are essential to keep the Justice System working during this pandemic period. Also, in such a big country as Brazil, it represents an important tool to allow access to Justice, since it facilitates the contacts between lawyers from anywhere in the country and judges. Instead of traveling to Brasília (Brazil’s capital) to represent a client in front of the Supreme Court, we can now do it from our homes or offices.

Dr Robert Doya Nanima (Uganda): 1. The VA Rules provide a mode of receiving evidence from remote locations. It provides for the location to mean the place of the visual-audio link conferencing facilities.
2. A look at the objectives shows that the Rules reduce the delays and costs associated with hearing cases, especially from vulnerable witnesses like children, the elderly and whistle-blowers.
3. A non-closed list of matters that can be heard online indicates that both pre-trial proceedings, proceedings and judgements may be heard online.
4. The Rules make it easier for witnesses to give evidence without physically appearing in court. While guidance on the nature of the witnesses is provided for, the court may elect to extend the application of the rules beyond these instances:
5. where a witness lives outside Uganda;
6. where proceedings relate to sexual or violent offences;
7. for security reasons;
8. for the safety of witnesses;
9. for infirmity or health reasons; or

for any other reason that the Court deems necessary and appropriate for a witness to give evidence through the visual audio link.

Dejan Kadiev (Republic of North Macedonia): I think the pros for online courts would be the expendability, as sometimes many parties from different cities need to attend the court which is a huge expense. And, also, during the times of a pandemic it is a way for the courts to work, as in North Macedonia there were no court meetings for nearly three months.

Taher Aboueleid (Egypt): Litigants and attorneys will have the right to file the lawsuit electronically, as well as to monitor the progress of the case electronically, but there will be also  pleading sessions.

6. Cons for online courts

Quazi Omar Foysal (Bangladesh): Well, the law only facilitated the virtual hearing. But not all proceedings have been virtualized. Even if a remedy has been given, the clients/lawyers have to collect the order physically. Again, many lawyers and judges are not well trained in IT and many do not have the means to use the virtual courts. In many cases, especially out of capital, the internet speed is not very stable. My other brother who lives in my hometown (out of Dhaka) faced last scenario.

Justine Bernatchez (Canada):
– There is a lot of security and confidentiality issues.
– Everything happened too fast, so the justice system is not ready in Québec to do everything online.
– Only a few cases have the privilege to do all online while the others are still stopped.
– The tools used to save the files, evidence etc. are not efficient and there are problems of scattered data.

Anurita Varma (USA): Technology glitches, potential less opportunity for parties to appeal to the emotions of the judge/jury, potential less opportunity to make persuasive oral arguments if done online rather than in person.

Irina Mocanu (USA): As I mentioned before, the connection is not always great, and, thus, a part of the arguments may get lost on the way because the message will not be delivered completely to the other party/judge/arbitrator. In addition, I believe that with online courts, the personal touch of the individuals will be lost. It is very difficult to create an eye connection or even a connection at all with the judge or the other party’s attorney through online proceedings.

Caio Henrique Godoy da Costa (Brazil): I am absolutely against the first system I explained on answer no. 4, because it restrains the lawyer’s participation on the trial and forecloses the debate, which is absolutely essential on Courts of Appeals. The main reason for having 3 or 5 judges deciding one case is allowing the debate, the exchange of opinions to reach the best possible solution. On that first system there is not even a guarantee that all the judges will actually read the case or the Judge-Rapporteur’s opinion.

And specifically about online hearings, there are some relevant potential problems such as how to make sure about the participants identity, especially the witnesses; how to guarantee private communication between lawyer and defendant; how to make sure that the lawyer and the prosecutor will be able to effectively intervene when necessary to, for example, object a question before the witness answers it.

Dr Robert Doya Nanima (Uganda): There are limited facilities that can be used. Most of the facilities are in the city.

There has been a great emphasis on criminal matters.

The implementation of these rules in the Covid-19 era has not adequately engaged the position of the child as a perpetrator and as a victim.

Dejan Kadiev (Republic of North Macedonia): Probably the biggest con would be the principle of publicity as it cannot be fully managed in online courts.

7. Would you consider that, in the future, online courts will prevail in front of traditional courts? Why?

Quazi Omar Foysal (Bangladesh): In Bangladesh, I do not see any possibility. Here there is no sufficient infrastructure in Bangladesh to facilitate a permanent court basis. Phycological setup of general people is another reason. People believe what they see in the real world, not virtually. People have taken it for granted that online is a temporary solution.

Justine Bernatchez (Canada): I don’t think so. Things in Québec evolve really slowly so right now the system is not prepared for that. I think it could help with some problems here; the procedures are really slow to come in front of the court, doing things online would help, also for the foreign regions who don’t have access to a daily court, that would solve the problem.

Anurita Varma (USA): I anticipate that online courts will prevail in front of traditional courts on some aspects.  If there is an important case or motion that needs to be heard traditionally, the courts might require the traditional procedure.

Irina Mocanu (USA): Personally, I believe online courts will never prevail in front of traditional courts. They may get a percentage of the proceedings (i.e. in emergency cases or very special instances). However, I believe the “traditional way” will remain in place.

Caio Henrique Godoy da Costa (Brazil): I believe it is possible, especially for the Supreme Court and the Superior Federal Court, since they trial cases from all over the country and this system makes lawyer’s participation easier.

There will probably be a pressure from inside the Justice System to extend the use of these tools after the pandemic ends, especially considering how much time and money is being saved during this period.

Dr Robert Doya Nanima (Uganda): I believe this is the new normal going forward, because once engaged properly, the traditional matters of going to courts have many impediments in terms of physical filing of cases, appearing physically, which means taking time to travel to court and back.

Dejan Kadiev (Republic of North Macedonia): Probably they will for the low profile, “easy” cases, as they can save a lot of time and resources, but still for the bigger, “high profile” cases, the traditional courts should prevail.

Taher Aboueleid (Egypt): I think that e-courts will be widely used due to the need to use of technology in the courts, in order to guarantee the speed and ease of work for litigants, lawyers and judges.

8. Would you like to have an AI-judge in procedures in front of the court? Why? If so, in what procedures or in all procedures?

Quazi Omar Foysal (Bangladesh): No. Our social tradition is very complex, and AI would be very unreliable to deal with it.

Justine Bernatchez (Canada): No, I think that judges need to be human to understand the human factors in a case. Law is not black or white, so a human is better to understand the nuances in law.

Anurita Varma (USA): It depends.  It would make sense to use an AI-judge in simple procedures, but in complex cases a traditional judge should be used.

Irina Mocanu (USA): I would not like to have an AI-judge in procedures in front of the court. I would find it very hard to speak to “somebody” that is not a person. It would be very difficult to establish a connection with the judge, as mentioned above.

Dr Robert Doya Nanima (Uganda): I did not understand this question. In the traditional sense, it is desirable to appear before a judge, because he or she can examine and evaluate the demeanour of the witnesses, which could have a holding on the case before the court. Some procedures like bail applications, interlocutory, interim and ex-parte proceedings, there is really no need to appear before the judge as the matters may be interim pending the subsequent evaluation of the evidence.

Dejan Kadiev (Republic of North Macedonia): No, an AI judge would be a terrible idea. In Macedonia there was a short period in which there was a law regarding the type of sentence and the duration of the prison sentence. The judges had their “hands knot” and could not give a different sentence than the law required. They could not judge by their own opinion and that turned out to be a very bad law, which fortunately now is out of practice.

Taher Aboueleid (Egypt): No.

9. Are there any preoccupations in the field of ethics related to AI in general in your country of origin/country where you currently live? Please, tell us a list of concerns in this matter from your point of view.

Quazi Omar Foysal (Bangladesh): I do not have enough understanding of AI-judge.

Justine Bernatchez (Canada): There is not a lot of AI in Québec. I think that, sadly, it is the future, but it will violate everyone’s right to privacy.

Anurita Varma (USA): I do not believe there are, or if there are, I am currently unaware. However, in regard to ethics, clients might argue that their counsel might not put in as much effort or diligence for online courts/AI-judges as they would have traditionally.

Irina Mocanu (USA): In my opinion loss of jobs, lack of personal accuracy and imprecision would be some of the biggest concerns.

Dr Robert Doya Nanima (Uganda): – Witnesses not eavesdropping on the submission of evidence from others
– Admission of physical evidence requires legal ethics that speak to the chain of evidence, this may be abused by some witnesses

Dejan Kadiev (Republic of North Macedonia): There are not such preoccupations in North Macedonia.

Taher Aboueleid (Egypt): A strategy is being developed to organize the work of artificial intelligence in Egypt.

Avocat Silvia Uscov
Managing Partner USCOV | Attorneys at law

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