Enough has been said and written about the deception called "KEI," the (attempted) digitization of the judiciary. It has been shown that the scale and complexity of the digitization of the judiciary have been underestimated. In 2016, however, the procedural rules for digital litigation did come into effect and digital litigation was conducted in the courts of Gelderland and Midden Nederland as pilot courts in accordance with these new procedural rules. Now that the digitization of the judiciary is not going ahead, at least not in this form and manner, the digital procedural rules will have to make way for the old ones again and digital litigation at the pilot courts will have to be discontinued. Because not all digital procedural rules can be applied exclusively to digital litigation, but in the context of modernization and simplification are preferably also applied to non-digital litigation, a number of those procedural rules will be retained.
First, it ensures that the court can order an oral hearing at the request of a party or parties, as well as ex officio, in all cases and at any stage of the proceedings. The difference from the current procedural law is that the oral hearing is not limited to a settlement-information composition. In addition, the court will have more opportunities to tailor the oral hearing to the particulars of the case and the wishes of the parties. For example, the parties will have the opportunity to further explain their positions, and witnesses and experts may also be heard during the oral hearing with the judge's prior consent. Oral argument is dropped because the judge must always give the parties the opportunity to explain their positions orally. This also follows from Article 6 ECHR which includes the right to an oral hearing (fair and public hearing). Furthermore, litigants can ask each other questions directly during the oral hearing. The judge does have the power to prevent a certain question from being answered.
Furthermore, the rules on settlement and record are taken from the procedural rules for digital litigation. Those rules hardly differ from current practice, mainly the wording is different. However, it is now explicitly stated that the proceedings end by reaching a settlement and an official report of the settlement must be drawn up by default, which is now only the case if a party requests this. What is new is that the record of an oral hearing at which no settlement was reached may also consist of audio or video recordings.
The new procedural rules take effect Oct. 1, 2019, and give the judge a stronger directorial function and there are more options during oral argument.
Proceedings commenced digitally in the pilot courts before October 1, 2019 will be handled in accordance with the procedural rules for digital litigation. To promote the phasing out of digital litigation at these pilot courts as soon as possible, the court may also continue to handle the case according to non-digital procedural rules with the consent of the parties. A less far-reaching approach is also possible. The court can also agree with the parties that they will no longer use the digital court system. In case of an opposition to a default judgment filed after Oct. 1, 2019, the rules for non-digital litigation will apply - even if the default proceedings were thus conducted digitally.
By the way, digital litigation is not off the table. The Judicial Council has adopted a new basic plan for the digitization of justice. The basic plan assumes digital accessibility for litigants and a more manageable approach. Litigants can submit their documents digitally on a voluntary basis, after which a digital file will be made available. If this approach yields positive results, digital litigation can still be made mandatory.
More items from SOLV
This article can also be found in the Digital Transformation dossier
