Electronic evidence in Spanish civil procedure:

where wishes clash against reality

Julio Pérez GilUniversidad de Burgos

Summary

Introduction: functional equivalence Legal background Electronic evidence in civil trials Concluding remarks

Introduction: functional

equivalence

PreliminaryWhat is to proof?(thema probandi)

Judicial answer have to be coherent with social reality

Fundamental right to use the evidence means useful for defense

How to proof?(modus probandi)

electronic evidence in the proceedings does not imply exhausting the range of probative options relating to juridical electronic acts

In the praxis: electronic evidence is very scarce

Equivalence between digital files and documents

Principle of functional equivalence: Representative

nature They are not the

same but they are considered as if they do

Consequences: Equivalence make

things easier Uniform “procedural

treatment”

Limits: Not every file is

representative Not every digital file

has an analogical referent:

Transformation: Evidence by ‘issues of

information’ Electronic files documents

LEGAL BACKGROUND

Ley Orgánica del Poder Judicial (Organic Law of the Judiciary)

(1985)

Art. 230: Both the courts and the defendants can use

advanced technological media when available (nº 1, 4)

Courts can issue valid and legally effective public documents in electronic form (nº 2)

Court can administer proceedings using computerized media (nº 3)

Supervision of the General Council of Judicial Power (nº 5).

LexNet: RD 84/2007, 26 January, communication acts by electronic means

In praxis: near a wish

Ley de Enjuiciamiento Civil (Ley 1/2000) (Civil Procedural Law)

Common procedural norm art. 299.2:

a) “‘Means of reproduction for words, sound and images’ (photographs, audio and video medias, including digital ones)

b) “Instruments that allow storage, access or reproduction of words, data, figures and mathematical operations carried out for accounting or other purposes, of relevance to the proceedings Electronic filesThey are not documents, but are considered analogs (Explanatory memorandum)

LSSI y CE (Ley 34/2002) (Law IS services and EC)

Art. 24 1. Proof of having entered into a contract

through electronic means and the obligations which are derived from it, will be subject to the general rules of the legal system and, if it is the case, to the electronic signature regulations

2. In any case, the electronic media which records a contract concluded by electronic means will be admissible in a trial as documentary evidence

They are documents when refer to ‘services of the Information Society’

Ley de Firma Electrónica (Ley 59/2003) (Electronic evidence Law)

Electronic evidence is not mean of evidence, but object of evidence

3.9: “the legal effects of an electronic signature, which does not meet the requirements of a recognised electronic signature in relation to the data with which it is associated, because of the mere fact of it being presented in electronic form, will not be rejected’”

3.8: “the media in which the electronically signed data is found shall be admissible in trial as documentary evidence”

It is documentary evidence only if it is electronically signed (!)

Ley de Procedimiento Laboral (Labour Procedure Law) (1995)

Art. 90.1 “The parties will be able to make use of as many means of evidence as are regulated in law, mechanical means of reproducing words, images and sounds being admitted as such”

except where they have been obtained directly or indirectly in such a way as to violate fundamental rights and public liberties (exclusionary rule, art. 11 LOPJ)

ELECTRONIC EVIDENCE IN CIVIL

TRIALS

Assurance of the source of electronic evidence

25.1 LSSI: “The parties may agree to a third party filing the manifestations of consent that are contained in the electronic contracts and that record the date and the time at which such communications took place”

27.1.b) LSSI: obligations of service providers that undertake electronic contracting to inform the end-user in a clear, understandable and unmistakable manner and before initiating contractual procedures, as to whether the electronic document in which the contract is formalised will be stored and if it will be available at a later date

297 LEC: assurance of source of evidence copying and storage of data Prohibition of access or use Render data technically inaccessible Seizure of devices

Diclosure Timing

As soon as possible Media

Any Copies

Written transcript Instrumental means of evidence

Giving evidence from a distance

art. 135.5 LEC permits the on-line disclosure of documents to the cause subject to the technical potential of the court and the

parties Does not refer to computer files For the purpose of evidence and to comply

with the legal requirements that call for original documents: made available to the court within three days

following their delivery

LexNet: RD 84/2007, de 26th January, communication system with the administration of justice

Cross examination Art. 384:

“by the means brought by the party proposing the evidence or those that the court is minded to use”

in such a way that the other parties can, with the same knowledge as the court, make allegations and offer evidence as is their right by law

Files without electronic signature Transcript Commonly used instruments Technical complexity

Electronic simulations Image or sound electronic files Electronically signed documents

Contesting electronic documents

art. 326 LEC: when the party with an interest in the efficacy of

an electronic document requests it and its authenticity its contested, matters will proceed in accordance with the provisions of article 3 of the Law of Electronic Signature (!)

Art. 3 LFEL Nº 8: allows contesting authenticity of the

electronic signature, not to the document Advanced signature: requirements? Recognised signature: art. 326.2 LEC

(comparison of letters)

Assessment of electronic evidence

384.3 LEC: according to the rules of sound

judgments in accordance with their nature

Legal assessment? Files with public documents

Judicial Notaries and Registers Official documents

Files with private documents

Thank you for your attention!