Transparency and Innovation in the Judiciary (BR0096)

13. Transparency and Innovation in the Judiciary

Commitment Text:

Deploy the Electronic Judicial Proceedings at the Electoral Court

The commitment longs for improving the performance of the Superior Electoral Court, by

means of implementing the Electronic Judicial Proceedings at Regional Electoral Courts until

2017. The commitment aims to assure promptness, transparency and security, throughout

judicial and administrative proceedings, which also represents a relative tool for promoting

transparency.

13.1 Articulate a way to enable milestones delivery, stipulated during planning

13.2 Integrated communication actions for mobilizing and sensitizing internal and external users about the system

13.3 Stakeholders’ training

13.4 Necessary infrastructure delivery for hosting the system

13.5 Identify data with problem mitigation potential during deployment, in order to assure the well-functioning of future implementations

Responsible institution: Superior Electoral Court

Supporting institution(s): Federal Attorney General’s Office (AGU), Federal Public Defender’s Office (DPU), Electoral Prosecutor General´s Office (PGE)

Start date: October 2016...... End date: December 2017

Context and Objectives

Brazil’s regional electoral courts suffer from slow handling of cases, excessive red tape during proceedings, lack of simultaneous access to case materials, and potential security issues. According to the National Justice Council (CNJ), regional electoral court cases take, on average, over two years to complete, longer than the timeline of other court levels.[1] (CNJ is the judiciary institution in charge of improving the efficiency and transparency of the judicial branch.) As a part of the solution to this broader issue, this commitment seeks to increase electoral court efficiency by utilizing electronic judicial proceedings at the state level. The Superior Electoral Court initiated this process in July 2012.[2] Moving to electronic judicial proceedings is a major e-government initiative to digitalize judiciary bureaucracy. Specifically, this commitment plans to (1) develop a methodology, (2) communicate with users on the new system, (3) train stakeholders on the new digital system, (4) create the necessary infrastructure to host the new system, and (5) identify data to mitigate potential problems during deployment.

Using electronic judicial proceedings has the typical advantages of electronic government systems: it reduces paperwork and increases speed, verifiability, and consistency.[3] The electoral courts registered a record new case increase of 843% in 2017, while the national overall increase was 5.6%.[4] The electoral courts also registered the lowest levels of productivity in several indicators analyzed by CNJ. That was particularly the case at the lower courts, where a judgment takes, on average, over two years to complete.[5] Consequently, the situation urgently calls for adoption of best practices, including digital processes, to improve performance. There is also a need to improve the security of the process. This could be done by protecting personal information, defining access-level restrictions, and using cryptography and other data protection methods.

The commitment’s specificity is medium. It intends, as a general goal, to implement electronic judicial proceedings at regional electoral courts by 2017. However, it does not provide details on the activities that will be carried out, such as the nature of the trainings or envisioned infrastructure.

The commitment is relevant to access to information and the use of technology and innovation, because the electronic judicial process increases the level of transparency of electoral cases. This is the case in terms of both access to information and the delivery of public service records.

Despite its importance, the commitment has a minor potential impact. The institution of electronic judicial proceedings reflects a policy process in place since 2012.[6] Thus, the commitment expands a pre-existing program to digitalize judicial processes. It should also be noted that the commitment is restricted to implementation of electronic judicial proceedings at state-level courts. It does not include zone electoral courts (the most local ones, with a larger number of cases due to their primary role in starting most legal actions).

Completion

Most of the commitment milestones are substantially completed.

The government articulated a way to enable the delivery of the milestones and began the commitment’s implementation (milestone 13.1). This can be verified by the reports published on the national OGP portal.[7]

The government substantially completed the activities to mobilize and sensitize internal (e.g., judges, security forces, public prosecutors) and external users (e.g., lawyers and plaintiffs) (milestone 13.2). It conducted stakeholder trainings (milestone 13.3) and completed the necessary infrastructure (milestone 13.4). Evidence exists of several mobilizing events hosted at regional courts.[8] The government also conducted a two-day course and public event, and made training material available online. (There are no public records of how many users took the course or its results.)[9]

As stated by the delivery report of 30 August 2017, 21 of the 27 regional courts have started running electronic processes. The researcher confirmed that the websites of several regional courts were updated with the electronic judicial proceedings for public access (e.g., AM, BA, MT, PR, SC, SP, RJ).[10] Such updates illustrate the implementation of the necessary infrastructure. (The regional electronic judicial proceedings websites are mostly very similar to that used by the Superior Electoral Court. The similarity indicates that the federal system infrastructure has been used for regional courts as well.)

No evidence exists of progress on identifying data that can help mitigate problems during implementation (milestone 13.5).

The action plan set a completion date of October 2017 for milestones 13.3 and 13.4, which puts the commitment behind schedule. According to the government’s self-assessment report, one reason for the slow progress is that the government realized that additional funding is necessary to proceed. This funding would support the travel of Superior Electoral Court civil servants to the state courts to implement the processes.

Early Results (if any)

There are few early results due to the early stages of implementation and the low number of cases per court under the new system. At the time of writing, AC and RJ, for example, had run fewer than five processes each using the new system. The highest number of cases hosted on the new system was by PE, with 239 processes.[11] On average, the electronic judicial proceedings record only between 50 and 75 processes per regional court. Consequently, it is not possible to determine the effect of the commitment on the main policy problem identified: public service inefficiency and the potential compromising of judicial process security.

Nonetheless, as the civil society organization Article 19 argued during the July 2017 monitoring sessions, it is unclear how the commitment directly improves the transparency of electoral justice. In some cases, the government reserves access to the full content of electronic documents for citizens who possess a specific electronic certificate.[12] (Fewer than 2.5 percent of Brazil’s population has access to this certificate.[13]) Article 19 argued that while one could previously go to the physical registry to access documents, many courts under the new electronic system have limited access to only those participating in the case. This improves the trial processes, but does not necessarily lead to more openness of the justice system.

Critics of the commitment also observed that it focuses on e-government changes (which might indirectly promote more transparency and accountability) rather than open government. For this commitment to make a positive contribution to open government, the government will need to make a concerted effort to improve access to information, rather than only internal efficiency.

Next Steps

The IRM researcher recommends including this commitment in the next action plan, but with improvements. The government and civil society perceive the Judiciary as performing low in transparency. Less than one-third of the population trusts the Judiciary, and that number is constantly declining.[14] It is key therefore to link the introduction of electronic judiciary proceedings with not only public service efficiency, but also specific transparency actions.

For example, the government could publish datasets of the electoral proceedings. It could also draft a strategic plan to maintain the datasets and incentivize the use of these records. The IRM researcher also recommends promoting open access standards regarding the data and requiring high-security credentials (such as digital certificates) only when identifying the online users is sensible. The government should also address reforms in other areas, as requested by the National Justice Council. These areas include the disclosure of judicial personnel on transparency pages, an ongoing process that has been delayed for at least 10 years.[15]