In today's article, we will analyze two, seemingly identical, orders in which courts have ruled on the difference between service of an authorized and unauthorized electronic filing with the court.
As a general rule on service of process on the court, service may be made in writing, either in paper or electronic form. A pleading made in electronic form without authorisation pursuant to a special rule must be subsequently served in paper form or in electronic form authorised pursuant to a special rule; if it is not subsequently served on the court within ten days, the pleading shall be disregarded. The court shall not call for additional service of the application. Where the Civil Procedure Code (hereinafter referred to as the 'C.C.C.') allows the possibility of lodging an appeal by electronic means (Article 125(1) C.C.P.), that is to say, in an electronic registry, the lodgment must be authorised.
Electronic authorised submission
The first of the compared decisions is the order issued by the Supreme Court of the Slovak Republic in the proceedings under case No. 3 Cdo 105/2019.In it, the applicant argued against the violation of the right to a fair trial when the Regional Court in Bratislava rejected the applicant's appeal. The Regional Court held that the applicant's appeal was lodged after the expiry of the statutory time-limit for lodging an appeal. The contested order was served on the applicant on 22.08.2019, i.e. the 15-day statutory period began to run on 23.08.2017 and thus the last day of the period fell on 06.09.2017. The applicant filed the appeal on 06.09.2017, however, the said appeal was received on the Central Portal of Public Administration on 07.09.2017.
The Supreme Court of the Slovak Republic in this case concluded that in order to preserve the time limit for filing an appeal, the moment of sending the signed electronic filing under the e-Government Act will be decisive in this case, without the need to further prove the moment of the actual delivery of the filing from this system to the designated court. The litigant cannot be burdened with the subsequent transfer of data from the portal to the designated court, since it has no possibility of influencing that stage of service. It further submits that, in so far as the Court of Appeal dismissed the applicant's appeal as untimely, that procedural error prevented the applicant from exercising his procedural rights to such an extent that the right to a fair trial was infringed and the applicant has validly invoked a ground of appeal under Article 420(f) of the Civil Procedure Code (C.C.P.). The Supreme Court therefore set aside the order of the Court of Appeal and remitted the case back to it for further proceedings.
The second comparable decision is the resolution of the Constitutional Court of 1 April 2020, Case No. IV ÚS 115/2020. According to the applicant, the District Court violated his rights under the Constitution and the Convention and deprived him of his right to judicial protection. The complainant filed a complaint against the district court's order, "which he sent by email on 22 August 2019 at 23:59h. to podatelnaOSDS@justice.sk and simultaneously by fax on 22.08.2019 at 23:56. Subsequently, Plaintiff served the District Court with a paper copy of the Complaint on 08/30/2019. The District Court dismissed the plaintiff's complaint as untimely filed on the ground that it was received by the District Court electronically without authorization on August 23, 2019 at 00:00 hrs, i.e., after the statutory time limit,2 and as for the fax filing, this could only be done pursuant to Section 42 of the Code of Civil Procedure. In fact, since 01.07.2016, under Section 125(1) of the C.P.C., the filing can be made in writing, either in paper form or in electronic form. This is an exhaustive list of possibilities of forms of filing by a party. These forms of filing unify the terminology of the procedural rule and the substantive terminology on the written form of a legal act. It is no longer possible, as was the case under Article 42 of the CCP, to file a written pleading by telefax." (See ŠTEVČEK.M. et al: Civil Litigation Procedure Code. Commentary. Prague : C. H. Beck, 2016, p.447).
The complainant disagreed with the district court's legal conclusion that he did not file the complaint until August 23, 2019, as he had already filed it by email on August 22, 2019, at 11:59 p.m., and also by fax on August 22, 2019, at 11:56 p.m. Thus, he had already filed the complaint "electronically in two ways on August 22, 2019, i.e., within the time limit for filing a complaint, or in a timely manner and not late.
First of all, the Constitutional Court stressed that the form of electronic communication chosen by the complainant when filing the complaint does not fall within the scope of the e-Government Act because the submission in question was not authorized. It therefore also follows that the rule that an electronic submission is made by sending it to the electronic mailbox of a public authority cannot be applied to the form of electronic communication chosen by the complainant. However, in relation to ordinary e-mail communication, the Court of First Instance has held in another case that, for the purposes of preserving the time-limit for lodging an appeal, it is not the moment of sending the e-mail that is decisive, but the moment of receipt of the e-mail message by the court, the appeal being deemed to have been served on the day on which the e-mail was received by the court, even if that was after the court's office hours. In this context, it is worth pointing out that in the present case the applicant did not use the eClaims portal but a conventional e-mail service to lodge an electronic unauthorised complaint.
The Constitutional Court concluded that the use of a normal e-mail service involves the direct and immediate use of a technical means by means of which the transmission of a data (electronic) message from the sender to the recipient is carried out. In this form of electronic communication, a specific e-mail application (service) cannot be considered as the authority which is obliged to deliver the submission within the meaning of Article 121(5) of the C.C.P. In this respect, the decisive moment is the moment when the e-mail message was delivered to the competent court and not the moment when the e-mail message was sent.
The Constitutional Court also refers to the case law of the Constitutional Court of the Czech Republic, which is based on the legal conclusion that electronic communication by e-mail (or even by telefax) is not a communication through an authority that is obliged to deliver a submission, therefore the decisive moment is the moment of delivery of the submission to the court (cf. e.g. I. ÚS 250/05, III. ÚS 2361/08 and IV. ÚS2492/08). This is also due to the nature of e-mail communication, since the court can only ascertain that a person has lodged a particular submission when that submission is delivered to it, given that the sending party consists solely of the person, the hardware device chosen by him and the e-mail application chosen by him. In addition to the above, it must also be borne in mind that proving the moment of sending an e-mail by ordinary means, e.g. by means of a so-called screenshot, i.e. a photograph of the screen (which was also chosen by the complainant), or by more advanced means, e.g. by means of an export of data from a server log in the format of a text file, is relatively easy for a skilled person to alter. Unquestionable proof of the moment of sending an email would inherently require, in disputed cases, almost expert-level proof by a certified entity based on direct access to the email sender's system. These practical considerations also support the legal conclusion that , in the case of electronic communications in the form of ordinary e-mail, it is the moment of delivery of the e-mail message that is decisive, not the moment of sending.
Conclusion
In conclusion, it can be summarized that in the case of an authorized electronic filing with the court via the e-Claim portal, the decisive moment is the moment of sending the (authorized) filing, while in the case of a filing in the form of a regular (unauthorized) e-mail, the decisive moment is the moment of delivery of the e-mail message to the addressee, and not the moment of sending the e-mail[1].
Resources:
Resolution of the Supreme Court of the Slovak Republic, Case No. 3 Cdo 105/2019
Resolution of the Constitutional Court of the Slovak Republic, Case No. IV. ÚS 115/2020
[1] With regard to submissions by ordinary (unauthorised) e-mail, we add that the obligation to deliver the document additionally in paper or authorised electronic form within ten days is not affected by the above conclusions.
Author:
Mgr. Ivan Poruban
PARTNER
