Sigita Šimbelytė
Turiba University, Latvia
Giedrius Nemeikšis
Mykolas Romeris University, Lithuania
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Information technologies are taken for granted factor in everyday social life in the context of modern society. Due to this it’s important to ensure a proper legal protection of legitimate interests in commercial, public or private relations on the internet and other electronic form. As a consequence there is a necessity to provide all options to use electronic information as evidence in legal civil procedure. Nevertheless the Code of Civil Procedure of the Republic of Lithuania is especially criticised by lowers in practice usage and scientists for it’s regulation of electronic documents’ usage in evidentiary process, i.e. it’s quite far behind the actual technology progress. Moreover, other special legal acts related with this question don’t pay attention to mine practical problems so legal regulation of this question is quite poor. The Aim of the Article is to evaluate peculiarities and problems of electronic documents’ usage in evidentiary procedure in the civil process in Lithuania referring to international legal regulation and experience of USA normative and case law. The results of analysis shows that there are many serious problems of electronic documents’ usage in evidentiary procedure i.e. a wrong understanding of electronic evidence specifics, the unreasonable imposition of all uncertainties regarding to use and evaluation of such evidence on courts etc. Nonetheless neither Lithuanian case law nor law doctrine pays much attention to these problems. Key words: electronic document, electronic evidence, evidentiary procedure, civil process in Lithuania. |
Dynamic development of information technologies becomes an important factor in social relations, therefore, the law cannot efface from social changes and it has to regulate these relations properly. Consequently, juridical reliability and legibility of social relations, which run in the electronic space, should be ensured. And the most important – legal interests of participants in the electronic space should be protected. Thus, the significance of electronic information and electronic document arise in the judicial process of evidence’s verification. Nonetheless, sometimes juridical regulation and other practical problems appear. It is important to mention that in the juridical regulation area there are some uncertainties and ambiguities. The Code of Civil Procedure of the Republic of Lithuania often receives some criticism from practicians and scientists saying that regulation is too conservative and lags behind from the progress of developing technologies. There is a constant try to regulate the use of electronic data in the judicial process by the special enactments, in other words, some norms could be found in the Law of Electronic signature of Lithuania Republic and in the Law of Electronic relations of Lithuania Republic, but these regulations are quite poor. In addition, there is a growth of deals that are made using information communication means, but judicial practice is still slender in Lithuania. This fact causes a certain fear that electronic space is quite unsecure. Eventually, the doctrine itself analyzing the use of electronic documents in the process of evidence is not common in Lithuania comparing with international regulation or experience of foreign countries, despite that there are some problems in regulations.
In the future, the importance of electronic communication will increase; therefore, it is necessary to solve the question of the use and evaluation of electronic information as evidence in judicial cases now.
The object of the research is the use of electronic documents in the judicial process in Lithuania.
The aim of the work is to evaluate peculiarities and problems of the use of electronic documents in the civil law of Lithuania and to find solutions referring to international regulation and USA experience of juridical regulation.
The methods of the research are: systematic, analytical, logical, critical and cooperative law.
Abbreviations: CCRL – the Civil Code of the Republic of Lithuania; CCPRL – the Code of Civil Procedure of the Republic of Lithuania; SCL – the Supreme Court of Lithuania.
According to 197 article of CCPRL, written evidences are documents, public and personal correspondence material, other ratifications, where there is some data about circumstances that are significant to the case. Thus, the conception of written evidences includes not only various documents, but material objects, where important information is marked by letters or symbols, as well. Therefore, written documents cannot be related only with the paper form as an only means of the presentation of information. In 198 article’s 2 section of CCPRL is stated that documents, which are signed by participants of the case, and are presented according to legal treatment using the mechanism of telecommunication terminal, are equated to the form of written documents. The concept of telecommunication terminal mechanism is presented in the Law of Electronic relations of Lithuania Republic – “it is a mechanism or its part that helps to keep the connection and it is meant to connect any device directly or not to the public telecommunication network (in other words, to networks that are completely or partly created for provision of public telecommunication services)”. Thus, CCPRL regulates narrowly the use of electronic documents, it emphasizes only the transference of functions and the moment of signing. Although, the legislator gives bigger freedom to parties in making contracts using telecommunication terminal mechanisms, the 72 article’s 2 section of CCPRL indicates that the most important thing in such cases is the sufficiency of data, which is needed to identify the parties. But this reduces opportunities of the usage of electronic information in the process of verification, because the electronic data, which is not transferred and is only kept in the computer’s hard disk, remains unevaluated. The doctrine states clearly that such documents could give important information to the case and that it is illogical not to acknowledge information as a means of evidence; it would infringe the principle of neutrality (Lamanauskas, 2001; Čėsna, 2007; Civilka, 2004 and other).
The position of our legislator regarding the question of electronic information is considered conservative in comparison with the experience of foreign countries. For example, in the United Kingdom, already from the year 1995, the Civil act of evidence ascertains that all documents and their copies, including computer records, can be accepted as evidence in the civil process.
In Germany, according to Commentary of code of German Civil Process, electronic documents are accepted as a means of evidence, i.e. they are valuated as an examination object or the document and the court itself decides about their verifiable value, especially in such cases where some ambiguities due to authenticity and integrity of the document arise; then the experts are asked for the assistance. According to the rule 371 a of the Civil code of German Republic, an electronic document either from private or from public institution, which is signed by qualified electronic signature, is equated having the same verifiable value as a written document. Inspection is applied for copies of electronic documents (for example, pdf format), and for scanned unconfirmed agreements and the court itself decides on their authenticity and reliability (Noeding and Bumberger, 2001)
In the context of international regulation in UCITRAL Recommendation on the Legal Value of Computer Records (1985) general secretary noted that already in that time, in the most of the European countries, electronic documents were permissible means of verification. In the section 59 it is stated that the aim for which this requirement is set is that information either from the document or from the other form should be covered not only in the usual form, but in computer record as well.
Moreover, 198 article of CCPRL provides that written evidences can be given only by the participants of the case or obtained by court. It could be noticed that this formulation is similar to the article’s 1.73, section 2 of CCRL, which regulates the written form of agreements and its features. It shows a strong position of legislator due to the form of evidence. Also, it could be criticized that in this article only documents that are signed by participants of the case or that are given using telecommunication terminal mechanisms are discussed. Other kind of documents, for example, signed documents by public authorities or documents that are signed by other people, not participants of the case, which having in mind the specification of electronic information could be no less important than traditional documents, are eliminated. The article 6 of UNCITRAL Model Law on Electronics Commerce (1996) proves that. It says that data notification is acknowledged as written where information can be accessed in such a way that it could be used later.
In the 177 article’s 2 section of CCPRL the list of evidence means is established: explanation of parties and third parties (directly and by representatives), testimony evidences, written evidences, exhibits, protocols of inspection and conclusions of experts. In the 177 article’s 3 section, it is noted that photos, video and sound records, which are done according to the law, are considered as a means of evidence. Obviously, this concrete list of evidence means impedes the process of defense, because electronic information cannot be ascribed to any of this evidence means. It shows that such regulation of CCPRL is quite narrow and not adjusted to contemporary social relations, where information technologies are used more and more.
However, Lithuanian judicial practice “fixes” not proper laws’ formulations and there is not one case (not so many so far) when electronic data was acknowledged as evidence by court. One of the first examples is the SCL decision of the 3rd of March, 2006 in the civil case No.3K-3-169/2006 “Simon Louwerse International Transport” versus Private limited company “Dinaka”, emails were acknowledged as proper evidence and reliability of data was evaluated by conclusions of assessor and other evidences of the case (testimonies of emails’ recipients). In the other SCL decision of the 11th of April, 2007, the civil case No.3K-3-139/2007, R. D. versus Private limited company “Toksika”, an email was acknowledged as an evidence and it was stated strongly that it has to be treated equally together with the other evidences of the case, and cannot be ignored. The SCL receives more and more such cases and its position is quite clear and innovative. In USA, emails are treated as one of the evidence means already for a long time; in such decisions as Strauss versus Microsoft Corp., Kelly versus Airborne Freight Corp., and Honor Center versus Hicks (Satterwhite and Michels, 1998).
Talking about written evidences, which are presented in the court, it is necessary to divide them into primary (originals) and secondary (copies). Secondary documents can be subdivided into copies that are certified according all requirements and ones that are not certified. This division is ratified by the rule, which is presented in the 198 article of CCPRL. The article 114 of CCPRL says that written evidence should be presented as originals or copies (digital copies) and they should be certified by concrete people: representative from the court, the notary, the lawyer or by the person who issued the document. Hence, the best means of verification becomes the originals of written evidence or copies that are certified according all requirements. Certification of digital copies raises a lot of ambiguities. The problem of originals and copies of electronic data is closely related due to the same specification of electronic data, in other words, electronic data has a feature to be copied easily.
Talking about relation between original and copy, it is important to discuss the term “original”. International words’ dictionary (2001) does not connect this feature with the conception of material document; it only connects it with the authenticity of the document. UNCITRAL Model Law of Electronics Commerce (1998) defines the term “original” as following: when originality is one of the requirements for information, then the data is acknowledged as being original; if integrity of information is ensured from the first moment when the document was created as a message and if the information that it presented in the message can be demonstrated. Thus, if the integrity of electronic document is ensured, then its copy will not differ from the original. So, the division of electronic data into originals and copies becomes illogical.
According to 114 article of CCPRL the problem becomes to determine what is original and what is not, for example in the case of email: whether printed email letter or the email letter that we see on the computer’s screen are original. From traditional point of view towards documents, originality could be confirmed by certain stamps, signatures, the style of handwriting and evidence that are found during examination. T. Lamanauskas (2001) states that the requirement of originality should not be an obstacle if there is a need to present electronic data to the court in general. It is necessary to refer to principles of honesty and rationality, which are confirmed in CCPRL and they have to be followed. It has to be mentioned that 9 article’s 1 section (a) of UNCITRAL Model Law on Electronics Commerce provides that verifiable value of electronic data cannot be diminished only because of the fact that the document is not of original form. Unfortunately, such norms do not exist in Lithuania’s legislation. However, doctrine clearly express the position that printed electronic document should be considered as original, because it conforms the authenticity of electronic data message and it is presented in authentic form (authenticity is not always a factor – if the electronic information is veiled etc.) (Čėsna 2007). The SCL stands on this position. Already in the 29th of May, 2000, SCL decision, the civil case No.3K-3-619/2000, Beliackas versus Private limited company “Sabina”, facsimile was acknowledged as proper evidence. Facsimile in itself is a copy, not original. Later, in the 20th of December, 2006 decision, the civil case No.3K-3-677/2006 Private limited company “Astrum Magnificum” versus Kaunas municipality and “Mitnijos investicija”, the SCL did not agreed with the decision of other court saying that the copy given by civil plaintiff, which shows that local transfer of money was made via internet, is not a proper evidence of payment of initial contribution. It cannot be equated to the bank’s receipt or bank’s transfer. The court noted that despite the fact that the civil plaintiff gave not certified copy for the contest, he had been already paid for the service. From the payment, which was made using electronic bank services and given to the commission of the contest, it is seen that this document was given by the bank, which accepted the transfer; therefore, it is a sufficient evidence of the payment. It is seen that judicial practice keeps to the position of doctrine. All this presuppose that the term “original” should not be interpreted very strictly. While discussing the question of electronic evidence, the originality of printed electronic document should be emphasized.
More ambiguities brings the Rules of Electronic data management of Lithuania Republic section 3 adopted by 11th January 2006 order No V-12 of General director of Lithuanian Archives Department under the Government of the Republic of Lithuania, which defines the concept of digital copy, in other words, reflection of the document that was not produced in a digital medium (for example, in the paper) and which was transferred to computer’s memory. The same law talks about spare copies: “in the institution there must be at least 2 spare copies of electronic documents and they must be stored in the different mediums and different places”. It can be noted that in one enactment three different terms are used: “original electronic document”, the copy of electronic document” and “a spare copy of electronic document”, however, is it logical to talk about originals and copies in the case of electronic information. The authenticity of data in the sense of 0 and 1 remains the same (Civilka, 2006). Due to this fact, spare copies should be the originals themselves, if their primary content remains unchanged. Therefore, it is illogical to talk about originals and copies, because information’s transfer to computer’s screen could be treated as duplication too. Hence, we have to agree that in the case of electronic document, originality of printed version should be checked.
On the other hand, if we agree that printed version of the document is a copy, which needs to be certified by mentioned subjects, such requirement would be illogical and impractical. Maybe legislator thought that a notary, who will certify the electronic document, should go the exact place where the same computer is and there he would certify the printed version of the document. And if there is a need he could ask for experts to examine document’s originality. More problems could be caused by people, who are connected with the case; they hardly would let the notary to their house in order to certify the originality of the document, because this evidence could be used against them in the case (Vaitkevičienė, 2005).
To emphasize, USA has developed the best evidence rule regarding this problem, which means that during the examination of document, record or photograph, original is required (Givens, 2005). Federal Rules of Evidence 1001 (3) determines specifically that this rule should be applied for evaluation of electronic information: “if certain documents are stored in the computer or in other similar device and they are printed, they are treated as originals”. Despite of that, courts keep to a certain logics – original of computer records is a certain combination of 0 and 1 and printed version is a result of electronic and mechanic processes (Kerr, 2001), but they follow the law, Doe v. United States, 805 F. Supp. 1513 ect.
Nowadays backup processes are very popular in information technologies. During backup processes data’s copies are saved in such a way, that in a case of data’s loss, it could be restored (Rowland and Macdonald, 2005). But then again, such data could not be treated as original, although, it would not differ from the original at all. Due to such cases validation of the copy would be impossible, because the original does not longer exist and there is no way to examine if the copy matches the original. This situation is provided in the article 202 of CCPRL. It explains that if written evidence is invalidated because the original does not exist anymore, then the court itself decides on verifiable value of the evidence. It is not very innovative to leave a big freedom of decision to the courts. It could lead to the other problem – court’s competency. In order to decide on authenticity and reliability of the data, special knowledge is required. Court’s decision would be based on its cooperation with specialists of information technologies. Such decision, hardly, could be treated as reasonable and based on complete internal assertions.
The other problem when printed electronic data could lose its meaning is in special cases, when various codes of programs and data bases are printed, consequently, it becomes hard to identify code’s meaning or the purpose of program in general (Lamanauskas, 2001). If printed electronic data lose its meaning, it is logical to think that such kind of information cannot be treated as written evidence. Then, it is possible to refer to experience of foreign countries (Frieden and Murray, 2011) and to 210 article of CCPRL, which states that the court can initiate inspection of written and exhibit evidence in their place of presence. Nevertheless, some difficulties could be faced. Due to inspection the court should take an appropriate decision, but there is a danger that up to the time when the decision would be taken, certain electronic data would be changed or deleted (Civilka, 2006). Then, in order to determine the fact of deletion not only the help of specialist would be needed, but it would be difficult to do in the terms of time and costs.
Electronic signature helps to solve the problem of electronic document’s authenticity; it also increases verifiable value of the document. Directive 1999/93/EC of the European Parliament and of the Council of the 13th of December 1999 on a Community framework for electronic signatures defines it as data, which is presented in a certain electronic form and connected or logically linked with other electronic documents and can be used as a means of authenticity. Similar formulation is embedded in the article 2 of the Law of Electronic signature of Lithuania Republic. It says that electronic signature – is data, which is inserted, connected or logically linked with the other data in order to confirm the authenticity of latter data or to identify the person who signed the document. In Lithuania, differently than in other directives, electronic signature refers not only to the integrity of the signed documents, but to the identification of the person as well.
According to H. Rossnagel (2004) it is could be noted that the definition of electronic signature has two elements):
In the operation report of Directive 1999/93/EC due to Community framework of electronic signatures, three kinds of signatures are presented:
It could be seen that these kinds of electronic signatures differ in a certain degree of reliability. Therefore, the court evaluating reliability of electronic document as evidence and taking a decision due to its verifiable power has to consider the type of electronic signature it is.
Referring to the article 8, section 1 of the Law of Electronic signature of Lithuania Republic the secure electronic signature is created with the help of secure mechanism of signature formation and it is certified by a valid qualified certificate. Moreover, it has the same juridical power as the signature that is put in written documents and it is admissible as a means of verification in court. The article 2, section 5 of the same law defines the conception of secure electronic signature. The legislator gives the status of admissible evidence only to these electronic documents, which have the highest degree of reliability (“qualified electronic signature”). However, in the same law there is a place for the principle of consensus in the civil juridical relations. The law affirms that such electronic signature would always have the juridical power if users of signature agree between themselves. On the other hand, the article 8 of the Law of Electronic signature of Lithuania Republic indicates that electronic signature does not become invalid only because that it loses the status of “secure signature”. When the electronic signature is marked for low reliability, then the court takes the decision.
The use of electronic information in the process of verification is defined by the article 8, section 1 of the Law of Electronic signature of Lithuania Republic saying that the court cannot reject documents, which are not certified by the electronic signature. Liberal principle of evidence evaluation gives a possibility to the judge to evaluate reliability of the data and at the same time suggests quite a problematic way to solve this situation.
The article 185 of CCPRL embeds the rule of liberal evaluation of evidence, in other words, the court evaluates evidence according to its inner belief, which is based on objective circumstances that have been argued during the process. The Senate of SCL in the 30th of December 2004 rulling resolution No. 51 notes that “during evaluation process the courts should follow not only the rules, but logic laws as well”, the judge can “make fair conclusions based on their inner belief” and “despite the form requirements that are embedded by law, (…) the judge has a right to accept and evaluate evidence according principles of honesty, justice and rationality”. It shows that liberal principle of evidence evaluation leaves a lot of space for judges to decide upon verifiable value of electronic information. However, neither in the level of law, nor in the judicial practice, information’s evaluation criteria are not concretized. Having in mind peculiarities of evidence, same standards cannot be applied, which are applied to other kinds of evidence.
Legal doctrine in Lithuania verifiable value of electronic documents links with evaluation of reliability, authenticity and integrity (Lamanauskas, 2001; Vaikevičienė, 2005 and others). But these criteria are quite abstract. Evaluation criteria of information that are presented in the electronic form can be found in the article 9, section 2 of UNCITRAL Model Law on Electronics Commerce (1996). Thus, in order to evaluate the message of electronic data it is necessary to consider:
Judicial practice in USA has its own criteria. The case, where these criteria were mentioned for the first time, is Lorraine v. Markel American Insurance Company. Evaluating admissibility of electronic data, following criteria were indicated:
There is no doubt that establishment of new criteria and rules in the level of law or at least in the judicial practice of Lithuania could help to indicate the status of electronic evidence in the process of litigation. Now everything is based on the liberal principle of evidence evaluation.
Generally, in the USA’s law, two categories of computer data could be divided according the subject, which is responsible for the signature’s content. To be specific, if data creation was depended on man’s will or if it was a result of algorithms’ program: computer – generated records (for example, email messages, Skype chats, word documents etc.) and computer – stored records (“log in” records, telephone records etc.) (Gifford, 2008). It is possible to divide the third criterion. This would be the records that are generated by the computer and stored there, for example, in the case of computer swindle, the person could use a certain calculation and to process financial data etc. Thus, in the process of verification, it is important to distinguish the types of records, because their admissibility, verifiable value and authenticity depend on it (Goode, 2009). The question remains, if such division of electronic information and differentiation of the verification process would make decisions more objective and easier to make or if it would be better to leave this question to the court to decide referring to its inner belief, which is not always profound, versatile and secure.
Lithuanian legal acts
The Code of Civil Procedure of the Republic of Lithuania (2002). Valstybės žinios, No. 36–1340.
Civil Code of the Republic of Lithuania (2000). Valstybės žinios, No. 74–2262
Law on Electronic Communications of the Republic of Lithuania (2004). Valstybės žinios, No. 69–2382.
The Law on Electronic Signature of the Republic of Lithuania (2000). Valstybės žinios, No. 61–1827.
The Rules of Electronic data management of Lithuania Republic adopted by 11th January 2006 order No V-12 of General director of Lithuanian Archives Department under the Government of the Republic of Lithuania (2006). Valstybės žinios, No.7–268.
Special literature
Musielak. Kommentar zur Zivilprozessordnung: ZPO. mit Gerichtsverfassungsgesetz und Europäischem Zivilprozessrecht. Auflage 2013. Buch. Rund 3000 S. In Leinen Vahlen
Givens J.S. (2005). The Admissibility of Electronic Evidence at Trial: Courtroom Admissibility Standards, 34 CUMB. L. REv. 95 (2003–2004)
Lamanauskas T. (2001). Elektroniniai duomenys kaip įrodinėjimo priemonė civiliniame procese. Justitia, No. 2(32).
Vaitkevičienė R. (2005). Elektroninių duomenų naudojimo civiliniame procese galimybės. Justitia, No. 4(58)
Civilka M. (2006). Elektroninės komercijos teisinis reguliavimas: nuo durstinio iki siuvinio. Justitia, No. 3(61)
Čėsna R. (2007). Kai kurie elektroninių įrodymų panaudojimo civiliniame procese aspektai. Jurisprudencija, 10(100).
Rowland D., Macdonald E. (2005). Information Technology Law. 3rd edition. London: Cavendish Publishing
Rossnagel H. (2004). Mobile Qualified Electronic Signatures and Certification on Demand. Lecture Notes in Computer Science, Vol. 3093/2004
Noeding T., Bumberger K. (2001). Electronic Signatures in German Civil Law. Tolley's Communications Law, 6(3).
Goode S. (2009). The Admissibility of Electronic Evidence, 29 REV. LITIG. 1, 2
Satterwhite R.A., Michels J.J. (1998). Employment Issues in Communications Technology. Retrieved from: http://library.findlaw.com/1998/Jun/1/129309.html
Kerr O. S. 2001. Computer Records and the Federal Rules of Evidence. Retrieved from: http://www.usdoj.gov/criminal/cybercrime/usamarch2001_4.htm
Tarptautinių žodžių žodynas. – Vilnius: 2001, p. 706.
Gifford M.D. (2008). Admitting Electronic Evidence in Federal Court: I’ve Got All This Evidence Data – Now What Do I Do With It? AM. B. ASS’N, 2. Retrieved from: http://www.abanet.org/labor/basics/elist/papers/lied.pdf
Other legal acts and recourses
Civil Evidence Act, 1995. Retrieved from: http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950038_en_1;
UCITRAL Recommendation on the Legal Value of Computer Records (1985). Retrieved from: http://www.uncitral.org/pdf/english/texts/electcom/computerrecords-e.pdf;
UNCITRAL Model Law on Electronics Commerce with Guide to Enactment 1996 with additional article 5 bis as adopted in 1998. Retrieved from: http://www.uncitral.org/pdf/english/texts/electcom/05-89450_Ebook.pdf
Komisijos ataskaita Europos Parlamentui ir Tarybai – Direktyvos 1999/93/EB dėl Bendrijos elektroninių parašų reguliavimo sistemos veikimo ataskaita: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0120:FIN:LT:HTML
Case Law
The Ruling of Civil Division of the Supreme Court of Lithuania issued on 29th May 2000 in civil case Beliackas v. Private limited company “Sabina” No. 3K-3-619/2000.
Ruling of the Senate of the Supreme Court of Lithuania on application of norms of the code of Civil process that regulates evidentiary procedure in the judicial practice. Judicial Practice, 2004, No. 51.
The Ruling of Civil Division of the Supreme Court of Lithuania issued on 3rd March 2006 in civil case Ltd. „Simon Louwerse International Transport“ v. Ltd. UAB „Dinaka“ No. 3K-3-169/2006.
The Ruling of Civil Division of the Supreme Court of Lithuania issued on 20th December 2006 in civil case Ltd. “Astrum Magnificum” v. Kaunas municipality and “Mitnijos investicija”, No. 3K-3-677/2006.
The Ruling of Civil Division of the Supreme Court of Lithuania issued on 11th April 2007 in civil case R. D. v. Ltd. “Toksika“ No. 3K-3-139/2007.