Acasă Actualitate GUEST WRITER | Radu Damaschin, Partner NNDKP | New rules for service...

GUEST WRITER | Radu Damaschin, Partner NNDKP | New rules for service of civil procedural documents

The service of procedural documents is one of the technical guarantees of the right to a fair trial. The way in which a party is informed of the opposing party’s claims or defenses or in which procedural documents are served upon the court fundamentally affect the exercise and enforcement of subjective rights and ultimately the entire justice process. Unlike the large majority of the civil procedural institutions, the regulation of which essentially involves an option within the fairly strict limits of tradition and of certain classic legal principles, the service of procedural documents involves a distinct element that is tied to the advancements in communication methods, with which judicial policies must be aligned.

Without necessarily changing the legal structure of Chapter II of Title IV of the Code of Civil Procedure, which governs the summons and service of procedural documents, Draft Law 346/2018 for the modification and supplementation of Law 134/2010 on the Code of Civil Procedure provides a sensible simplification with respect to the service of procedural documents by modifying four articles in the law.

According to the bill, the future formulation of para. (4) of Art. 154 of the New Code of Civil Procedure eliminates the requirement of declaring the content of the document served by mail when service is not made by procedural court agents. In this case, service will be made by certified mail with confirmation of receipt in a sealed envelope, with the attachment of the receipt/receipt minutes and the notice provided in Art. 163 of the New Code of Civil procedure. Also, paragraph (6) of the same article gives power to the court registry to serve summons and other procedural documents by telefax, electronic mail or by other means that ensure that the document was transmitted and confirmation of receipt, if the parties provide the court with relevant information in this respect. As it can be noticed, the first tenet of para. (6) is identical to the current regulation. The novelty element refers to the introduction of the extended electronic signature that will accompany the service of procedural documents and that will replace the court’s stamp and the signature of the court clerk from the mandatory summons specifications.

At this point, we would like to remind the reader that the extended electronic signature represents the process of authenticating an electronic document through a qualified digital certificate, which is to be obtained by each court separately from a provider of certification services pursuant to Law 455/2001 governing electronic signatures. Such an electronic mechanism is intended to ensure the integrity of data in electronic format[1].

The next modification is brought to the same Art. 154, to which a new paragraph is added, paragraph  (61), which provides that the summons and other procedural documents mentioned in para. (6) are considered served at the moment when a message is received from the system, which specifies that the addressee has received them, according to the information provided by the latter.

With respect to the evidence necessary to prove that service of process was duly made in accordance with the provisions of Art. 154 para. (6), the legislator supplements Art. 163 with a new para. (11), which sets forth that service is considered made through the notification message sent to the addressee, received from the system, which is subsequently listed (printed) and attached to the case file. Thus, the form to be filled in by the addressee, which was supposed to be returned to the court by any means, is no longer used. According to Art. 154 para. (6), the date when the procedure was deemed met in the case of summons or communication of a procedural document was deemed to be the date indicated on the printed copy of the proof of expedition, certified by the court clerk who sent the document.

Under the current regulations, the personal findings of the agent who drafted the document acknowledging the communication constitute proof of the service of process until/unless it is proven that a false registration was made. Under the future regulation, it will be possible to challenge the proof that service of process in electronic format was adequately made through a specialized expertise, in accordance with the requirements set forth in Art. 8 para. (1) of Law 455/2001. In this respect, we should take into consideration the fact that, according to Art. 5 of the aforementioned law, the written instrument in electronic form, to which the court clerk enclosed, attached or added an extended electronic signature, based on a qualified certificate, which was still valid or in force at the relevant date and was generated by a secured electronic signatures device, is deemed, from the perspective of the requirements it meets and effects it produces, as a written instrument bearing a private signature.

Last but not least, the most important modification in this area is related to supplementing/modifying Art. 183 para. (1) and para. (3) in the sense that currently, the law also recognizes the validity of procedural documents sent via fax or e-mail within the term set forth by the law, not only that of those sent through these electronic means of communication during the official court schedule. More specifically, Art. 183 para. (1) is amended in the sense that the procedural document submitted within the term set forth by the law via registered letter with acknowledgment of receipt, through the post office or filed with  a  specialized overnight courier or sent through fax or e-mail, is deemed as communicated within the legal term. Furthermore, Art. 183 para. (3) of the New Code of Civil Procedure sets forth that in the cases listed under para. (1) and (2), the postal receipt and the registration confirmation or proof of communication marked, as the case may be, by the specialized overnight courier, specialized communication service, military unit or the administrative office of the place of holding, on the document submitted, with the indication of the date and time of receipt of the fax or e-mail, as such are confirmed by the computer or fax machine of the court, serve as proof of the date of submission of the document by the party in interest.

As it may be observed, the future regulation seems to be more versatile and much more efficient, given that it recognizes the procedural value of several modern means of communication and electronic filing.

In reality, these modifications are only intended to meet certain audacious attempts of certain judicial bodies to identify practical and efficient means of communicating procedural documents through modern methods of exchanging information. In this respect, we would like to recall the measure ordered by a Cluj court in January 2018, which ordered in a criminal case the summoning of a person through Facebook. In this case, the attempt failed, due to the “impossibility of the court” of creating a Facebook page. Obviously, we believe that this was not a matter of the technical incapacity of the court’s IT department to create a Facebook page but rather one justified by the reservations of the judicial body towards serving documents through a social network.

Nevertheless, from a purely legal perspective, we should point out that the modifications that were implemented, although they should bring, as indicated in the substantiation report of the bill, a harmonization of certain texts of the Code of Civil Procedure with the “practice developed based on the decisions of the Constitutional Court and the courts of law”   as paradoxical as it may seem, with respect to the proof confirming the date of fulfillment of the service of process, in cases where the document is sent through fax and email, the solutions of the legislator are diametrally opposed to certain solutions recently provided in the jurisprudence.

By Decision no. 605 of September 22, 2016[2] regarding the objection of the unconstitutionality of the provisions of Art. 182 para. (2) of the Code of Civil Procedure, the Constitutional Court found that:

The claims sent by email or fax do not benefit from the effects specified in Art. 183 para. (1) of the Code of Civil Procedure, pursuant to which a procedural document sent within the time period set forth by letter registered with the post office, or provided to an express courier service or any other specialized delivery service will be considered to have been delivered within the required period. While Art. 183 para. (3) of the Code of Civil Procedure expressly provides that the post office receipt, as well as the record or confirmation provided by the express courier service or by the specialized delivery service constitute proof of the date of transmission of the document by the interested party, there is no similar provision for the case of procedural documents sent by fax or email.

The problem arising from the service of procedural documents by fax or email is related to the certainty that said documents are received by the court within the time interval set forth by law. The same idea is conveyed by Art. 154 para. (6) in conjunction with Art. 241 para. (3) of the Code of Civil Procedure, pursuant to which the means of communication must be capable of ensuring not only the transmission of the text but also a confirmation of receipt of the text.

Thus, the Court finds that the transmission of the procedural documents by fax or email is similar to the personal filing of the documents with the court, and not to the delivery by post, express courier service or other specialized delivery service. The procedural document sent by fax or email is considered to have been duly served on the date of its registration in the court records and, pursuant to the challenged legal provision, although periods are calculated on a full day basis, on the day the relevant period expires the interested party is to file the document before closing time.”

Furthermore, by Decision No. 34 of May 15, 2017[3], which clarifies the way in which Arts. 182 and 183 of the Code of Civil Procedure are to be construed, in the sense that it establishes  whether a claim that was filed by email/fax on the last day of the required period, which is calculated per days, after the closing hour of the court, can be considered to have been filed within the period required by law, the High Court of Cassation and Justice decided as follows:

“(…) being an exemption from the rule set out in Art. 182 para. (2) of the Code of Civil Procedure, only the procedural document delivered to the post office by registered letter or to an express  courier service or any other specialized delivery service, on condition that it is submitted before 12 am on the last day of the required period, is presumed by law to have been served within the necessary period, but not in the case of a transmission by fax or email, which is not expressly covered by Art. 183, and therefore cannot be interpreted in a broader sense.

All documents submitted by fax or email after the court’s closing time will be registered on the following day and are considered to have been filed on the date of their registration in accordance with Art. 199 of the Code of Civil Procedure.

Therefore, in all the analyzed situations, what produces consequences from a legal perspective with respect to the timely service of a procedural document is the day when the document was registered in the court records, which must be within the procedural period, and not the day on which the document was emailed or faxed, even if after the closing time.”

The same arguments have been considered by the Superior Council of Magistracy in the observations sent to the President of the Senate on May 29, 2018. In the respective letter, the Council argued that:

“The filing of documents by fax or email cannot be considered to be equivalent to the filing thereof by post, express courier service or other specialized delivery service since, in the case of the latter methods, which do not entail the direct and personal delivery of the documents to the court, the date on which the document has been filed by the interested party is confirmed by a third party which intervenes in the causal chain (between the party and the court), and this offers a sense of assurance and certainty with respect to the filing date, whereas in the case of the documents sent by fax or email (which similarly do not entail the personal and direct delivery of the documents to the court), we no longer have this connecting link that is absolutely necessary for the confirmation of receipt. The proof of filing the faxed or emailed document cannot be relegated to electronic means of communication, although they provide extensive guarantees of certainty and reliability from the perspective of the technical settings based on which time periods will be calculated thereafter, with significant legal effects.”

Without denying the subtlety of the argument, which rests on the relation between Art. 182 para. (2) and Art. 183 in the current version, we consider that, from the perspective of the proof of the timely filing of the procedural document, the distinction between the personal filing of the document via an electronic means of communication and the filing of the document by a third party (post or courier service) is an artificial one. Modern methods of communication incontestably ensure a higher degree of accuracy from the perspective of reflecting the effectiveness of a certain operation and the date the operation took place. Furthermore, the evidence provided by electronic means of communication is much more difficult to contest as opposed to the records of any intermediary agent. We can accept that certain reserves may exist in relation to electronic means of communication, in particular with regard to the difficulties arising from the working hours of the court, but the beneficial effects on the parties and on the streamlining of the legal proceedings are evident. For instance, it is difficult to understand why a procedural document that was delivered to the post office three days ago, close to midnight, would be preferable (in terms of its validity) to one emailed at 16.05 yesterday. Similarly, we consider that it is unreasonable to prefer deciphering the text of a stamp rather than giving credit to the date and time indicated on the email or fax transmission record.

We cannot anticipate the issues triggered by the future regulation and we are not familiar with all the subtleties of modern communication tools, but we have all the reasons to believe that the new legal provisions will help eliminate a great deal of the problems that result in redoing the summoning/service procedures, thus ensuring a quicker resolution of the legal proceedings.

[1] According to Art. 4 item 4 of Law 455/2001, the extended electronic signature represents the electronic signature that meets the following cumulative conditions: i) it is solely related to the signatory (to the person who holds a device for creating the electronic signature and who acts in their own name or as a representative of a third party; ii) ensures the identification of the signatory party; iii) it is created by means that are exclusively controlled by the signatory party; iv) it is related to the data in electronic form to which it refers, so that any subsequent modification thereto is identifiable.

[2] Published in the Official Gazette of Romania No. 2 of January 3, 2017

[3] http://www.scj.ro/1093/Detalii-jurisprudenta?customQuery%5B0%5D.Key=id&customQuery%5B0%5D.Value=136804

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