Ciberjusticia y Consejo de Europa

El pasado día 10 de diciembre de este año 2015 tuve el honor de acudir en calidad de experto y en representación del Consejo General de la Abogacía Española al plenario que CEPEJ (Comisión Europea Para la Eficiencia de la Justicia) celebraba en Estrasburgo en la sede del Parlamento Europeo. Mi misión era hablar de algunos de los servicios tecnológicos del Consejo General pero, más que eso y por indicación de la organización, sobre algún aspecto que me pareciese relevante en relación con la Justicia y las tecnologías de la información. Así lo hice y, si no recuerdo mal, esto fue lo que dije. Discúlpenme si lo transcribo en inglés pero este —y el francés— eran los idiomas de uso obligado en esta sesión.

«Ladies and gentlemen

I wish to thank you on behalf of the Spanish General Council of Bar Associations for your kind invitation. It is an honour for us.

Secondly, I must tell you that the video you have just seen, only represents one of the many technological tools that the General Council of Spanish Bar offers to their Lawyers.

At this time, the Spanish lawyers, can perform many other legal tasks by using the digital tools provided by the Spanish General Council. They can, for example, make appointments with their clients in prison, send or receive notifications and reliable communications and they can interact with the courts using a specific interface developed by the Spanish General Council of Bar Associations for the system «LexNet”. LexNet is the communication network of the courts and Tribunals of Spain.

However, in my opinion, the development of all these technological tools is meaningless if, by doing so, we forget the principles that should govern our action in the information technology field.

There is nothing more practical than a good theory.

We live immersed in a technological revolution that, like all technological revolutions, will profoundly affect the world of law.

It has always been so… and is still now.

Five thousand years ago, somewhere in Sumerian, someone invented writing and thus began the first technological revolution in information. With writing appeared not only literature and history; with writing not only they were new and better ways of managing businesses, or its accounting. In the field of law, for example, rules were no longer stored in the brain- of the people, the rules were stored in stone, clay tablets or papyrus. Humans began to abandon the custom as a way to regulate their lives to replace it with the written law.

People adjusted their behaviour to written laws; even rulings and kings brought their behaviour and way of governing under the provisions of certain sacred books. Script changed the ways of exercising political power and also it changed the way they relate rulers and ruled.

Nothing was again the same.

In the fifteenth century a new technological revolution in information again changed the world: the printing press.

With its appearance printing press democratized culture he was more easily accessible to all.

The monopoly of the written culture exercised by the church was broken, and new phenomena appeared as the Lutheran reform, largely, which are the descendants of printing.

Printing press made possible the Enlightenment and the Enlightenment made possible forms of government we have today. Nothing was the same since.

These technological revolutions of information were not only technical advances were also cultural, social and political developments that radically changed the forms and systems of government and life of people.

Let me tell you a story.

In 1791 most of the population of the United States was illiterate and only a small percentage of the population had access to the written press; however, precisely that year, only two years after entry into force of its Constitution, the Americans reformed and introduced the first amendment proclaiming, what will you guess? Press freedom.

One imagines all this great mass of illiterate Americans wondering what will it serve for that freedom of the press and what do we need it for, if we can not even read?

However, American politicians were bold and history awarded them. That same press freedom that Americans enjoy since 1791 my country did not effectively had it until 1978, nearly two hundred years later.

American politicians realized that the press was not just a technology but that its political implications were obvious to them and decided to lead change instead of being led by him.

We live in our days a much deeper technological revolution , and it is necessary, as the fathers of the American nation, we decide if we are to lead the changes or if we will be drag by them, if we are to lead them, in what sense we must do it?

We need to become aware, as it happened to the authors of the First Amendment to the United States Constitution, that when we talk about new technologies we are not just talking about improvements in management, processes or services, but that we are talking about justice, we are talking about freedom.

In 2003 the General Council of Spanish Lawyers established its first plan in the field of so-called new technologies. Since then and until now they have been developing the tools I have mentioned before and many others too numerous to expose. However, in recent years, it has become aware of the threats that the use of these new technologies sets out to lawyers and their clients.

Privacy and confidentiality are cornerstones not only for the work of lawyers, but also they are basic pillars of Justice, and this is proclaimed by the courts and Tribunasl of Europe. The right of defence can not exist if there is no privacy in communications between lawyer and client. That’s why this year, just a month ago, the General Council of Spanish Lawyers has decided to invest half a million euros to try to acquire a mail system which safeguards communications Spanish lawyers with their clients, based on the use of personal cryptographic keys , compliance with the principle end to end and open source programs.

Therefore, the many activities that the General Council of Spanish Lawyers, it seems to me particularly important, so I want to share with you, relative to cryptography and digital signature. The General Council of Spanish Lawyers is recognized as a Certification Authority in this field, has its own digital signature systems and this, in my opinion, was one of his greatest achievements.

Privacy and cryptography walk toe to toe; no privacy without encryption, and without privacy no proper Justice Administration, which deserves the last name, will exist..

We can not speak of true judicial independence if the administration of Justice does not have tools to ensure that their communications can not be spied on by third parties, including governments. We can not even talk of true independence of the states if they do not have the same tools. We can not guarantee a fair trial to our customers if our communications with them can be spied. Never more than on the current days exists a threat of the confidentiality of communications between a lawyer and his clients.

Because of this, perhaps is the time that we take with the utmost seriousness this concern: we will not have an adequate judicial system if they do not endow the necessary tools so that our communications are safe from the eyes ofthird parties, even if the third parties are their own state governments.

That is why what I said before, when we talk about technology, we’re not just talking about management or improved services but we are talking about justice and freedom.

In the General Council of Spanish Lawyers are aware of this, threats and opportunities generated by new technologies in the field of justice and the need to defend ones and take advantage of others, and we are determined to do.

In any case it is never too late to start this task because even if we have grounds for believing that the present is bad, what is absolutely certain is that the future is ours.»