La notificación judicial electrónica: garantía del derecho a la tutela judicial efectiva y retos que plantea a la administración de la Justicia en España

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Publication date
2017
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13-03-2017
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Abstract
This doctoral thesis aims to assess the electronic service of court notifications from a triple perspective. Considering the constitutional dimension, it focuses on the effects of electronic notifications in the right to a fair trial. The procedural approach involves assessing the legal requirements and procedural effects of the electronic practice of court notifications. Regarding the administrative perspective, the challenges and requirements deriving from computerization of court notifications are analysed. The implementation of electronic court notifications is a remarkable element of the process of computerization of Spanish Justice. Consequently, the study describes this process and especially refers to the legal measures supporting it. Once this framework is analyzed, the thesis assesses the concept of electronic court notification and its connection to the right to a fair trial, in the terms defined in the Spanish legal system and writings as well as in the case law of the European Court of Human Rights when interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Once the concept is delineated, the thesis studies the legal requirements for the service of electronic court notifications with full guarantees in Spain. It thus analyzes the subjects involved, the technical means admissible and their necessary security and interoperability, as well as the special requirements for the electronic service of notifications. Finally, it assesses the effects deriving from the defective practice of electronic notifications and the requirements for the recognition of effects to those notifications in accordance with the Spanish law in this matter. The thesis specifically refers to LexNET, the system of electronic communications generally accepted for the practice of court communications between the Spanish Administration of Justice and legal practitioners, among other subjects. A system which is aimed to be widely available for electronic communications with the Spanish Administration of Justice but whose implementation has raised criticism and several difficulties. LexNET is not available for direct relations between citizens and the Administration of Justice through. The thesis suggests alternative means to develop these communications. Thus, it analyzes the systems expressly admitted in the Royal Decree of electronic communications: the notification on the court’s website and the notification in the enabled e-mail for communications with the Spanish Administration (Dirección Electrónica Habilitada). Along with these systems, the study considers the possibility of using other electronic systems which are generally available to the citizens, such as fax, certified fax (burofax), e-mail, social networks or videoconferencing. The thesis examines the current legislation in the field assessed, and specifically the Spanish Act 18/2011, of July 5, on the use of information and communication technologies in the Administration of Justice, the Royal Decree 1065/2015, on electronic communications in the Administration of Justice in the territorial scope of the Ministry of Justice that regulates LexNET well as the Law on Civil Procedure 1/2000, of 7 January amended by Law 42/2015, of October 5, which generalises the electronic relationship and electronic communications with the Administration of Justice. The research thus allows to identify problems, to find practical solutions and to detect opportunities of an essential instrument for the modernization of the Spanish Justice.
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