Data and digital transformation in the justice system

The Manifesto for a public data space has recently been published. The document raises the need to reinforce the importance of data in the current digital transformation process in this area. The document has been drawn up within the State Technical Committee of the Electronic Judicial Administration and was subsequently ratified by the competent Public Administrations in matters of Justice, i.e. the General State Administration through the Ministry of Justice and the Autonomous Communities that have assumed competence in this field, as well as the General Council of the Judiciary and the General State Prosecutor's Office.

Specifically, as is expressly recognised, it is "an instrument that seeks to improve the efficiency of Justice through data processing and to design public policies in the field of Justice, based on the consideration of data as a public good, in such a way as to guarantee both its production and its free access".

What are the main objectives to be achieved?

The document is part of a wider initiative called Data-driven Justice which, within the broader framework of the transformation of the public service of Justice, is conceived as a priority project for the Administration of Justice. Its main purpose is the creation of a secure, interoperable and reuse-oriented public data space. Specifically, it aims to:

• Promote a data-driven management model underpinning the transformation of Justice.
• Given that data must be considered a public good, it is considered a priority to guarantee free access to them.
• To promote a secure, interoperable and reuse-oriented public data space, which implies the need to address technical, organisational and, ultimately, legal challenges and problems. To this end, a governance model is proposed based on the configuration of access to data as a right, the promotion of interoperability, as well as, among other principles, the promotion of data literacy and the rejection of practices that prevent the re-use of data or, where appropriate, imply the recognition of exclusive rights.
• Ensure innovation in the field of Justice with a solution-oriented approach to concrete problems, in particular to promote cohesion and equality.

Difficulties and challenges from an open data and re-use perspective

This is undoubtedly a suggestive approach which, nevertheless, faces important challenges that go beyond the mere approval of formal documents and the promotion of legislative reforms.

Firstly, it is necessary to start from the existence of a plurality of subjects involved. To this end, the existence of a dual perspective in the public management of the judicial sphere must be emphasised. On the one hand, the Ministry of Justice or, as the case may be, the Autonomous Communities with transferred powers are the administrations that provide the material and personal resources to support management and, therefore, are responsible for exercising the powers relating to access and re-use of the information linked to their own sphere of competence. On the other hand, the Constitution reserves the exercise of the judicial function exclusively to judges and courts, which implies a significant role in the processing and management of documents. In this respect, the legislation grants an important role to the General Council of the Judiciary as regards access to and re-use of judicial decisions. Undoubtedly, the fact that the judicial governing body has ratified the Manifesto represents an important commitment beyond the legal regulation.

Secondly, although there has been significant progress since the approval in 2011 of a legislative framework aimed at promoting the digitisation of Justice, nevertheless, the daily reality of courts and tribunals often demonstrates the continued importance of paper-based management. Furthermore, major interoperability problems sometimes persist and, ultimately, the interconnection of the different technological tools and information systems is not always guaranteed in practice.

In order to address these challenges, two major initiatives have been promoted in recent months. On the one hand, the reform intended to be carried out by the Draft Act on Procedural Efficiency Measures in the Public Justice Service shows, in short, that the modernisation of the judiciary is still a pending objective. However, it should be borne in mind that this is not simply a purely technological challenge, but also requires important reforms in the organisational structure, document management and, in short, the culture that pervades a highly formalised area of the public sector. A major effort is therefore needed to manage the change that the Manifesto aims to promote.

With regard to open data and the re-use of public sector information, it is necessary to distinguish between purely administrative management, where the competence corresponds to the public administrations, as mentioned above, and judicial decisions, the latter being in the hands of the General Council of the Judiciary. In this respect, the important effort made by the judges' governing body to facilitate access to statistical information must be acknowledged. However, access to judicial decisions for re-use has significant restrictions which should be reconsidered in the light of European regulation. Even taking into account the progress made at the time with the implementation of the service of access to judicial decisions available through the CENDOJ, it is true that this is a model with significant limitations that may hinder the promotion of advanced digital services based on the use of data.

Even though the last attempt to regulate the singularities of the re-use of judicial information by the General Council of the Judiciary ended up being annulled by the Supreme Court, the aforementioned Draft Act contemplates a relevant measure in this respect. Specifically, within the framework of the electronic archiving of documents and files, it entrusts the General Council of the Judiciary with the regulation of "the re-use of judgments and other judicial decisions by digital means of reference or forwarding of information, whether or not for commercial purposes, by natural or legal persons to facilitate access to them by third parties".

More recently, at the end of July, the Council of Ministers approved a second legislative initiative that is already being processed in the Spanish Parliament and which incorporates some measures specifically dedicated to the promotion of digital efficiency. Specifically, in relation to the electronic judicial file, the reform aims to go beyond the document-based management model and proposes a paradigm shift based on the establishment of the general principle of a data-based justice system that, among other possibilities, facilitates "automated, proactive and assisted actions". With regard to open data and the reuse of information, the draft legislation includes a specific title that provides for the publication of open data on the Justice Administration Portal according to interoperability criteria and, whenever possible, in formats that allow automatic processing.

In short, data-driven management in the judicial sphere and, in particular, access to judicial information for reuse purposes requires a process of in-depth reflection in which not only the competent public bodies and legal publishers offering access to jurisprudence but, with a broader scope, the various legal professions and society in general can participate. Beyond the promotion of suggestive initiatives such as the Forum on the Digital Transformation of Justice, the first edition of which took place a few months ago, and the timely organisation of academic events where this debate can take place, such as the one held last October, ultimately we must start from an elementary principle: the need to promote a management model based on the opening up of information by default and by design. Only on this premise can the effective re-use of information in the public service of Justice be promoted definitively and with the appropriate legal guarantees.

Therefore, in view of the important legal reforms that are being processed, the time seems to have come to make a definitive commitment to the value of data in the judicial sphere under the protection of the objectives that the aforementioned Manifesto intends to address.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.