Yura Mincheva of Penkov Markov & Partners in Sofia looks at electronic documents’ probative force in civil and administrative proceedings
Given the increase in commercial intercourse between more distant counterparts through electronic messages, technological progress and new technologies’ successful implementation in both the private and public sector, the courts begin to discuss more often issues related to determining the will of respective parties stated in an e-message or e-document, as well as said documents’ authorship.
In order for a document (electronic or not) to have probative force, it has to be signed. Pursuant to the lawmaker’s will, the court accepts that a document signed with an e-signature has the same force and validity as a hand signed hardcopy document, i.e. is authentic and has probative force in terms of determining who the author is and what was their will.
After the initial contact with electronic documents, though, a number of new questions arising from their particularities have to be posed. An electronic document, unlike its hardcopy counterpart, carries much more information, including when it was created, how many times it was edited, the precise moment it was signed, etc.
Information on authorship and the will expressed through a given document is subject to daily commercial and civil disputes. It would, however, be interesting to analyze official e-documents with special probative force in the process of constructing Bulgaria’s e-government.
As a rule, pursuant to the CPC’s Art. 179, official documents evidence statements made to officials, as well as actions performed in front of or by them, but we are uncertain of the court’s position in the event that an electronic document contains in its history evidence of falsehood of the date of issuance. This represents a problem which case law would have to address, as it has not been encountered before. All prerequisites required to resolve the issue though, can be found in our legislation.
Known practice of some government authorities is to tolerate delays, resulting from workload, lack of technical means or other circumstances. Thus, they issue antedated administrative acts and send them to their addressees with months, even years delay. As a result, affected parties are deprived of any effective defense – they are unable to prove that “instructive” notification periods have been violated, or that the limitation period for drawing up given acts has expired.
In the case of hardcopy documents, it is more than enough to write down the serial number of the act in a filing book under a certain fixed date. With e-documents, however, such antedate is simply not possible, because all the information necessary to monitor an official’s actions is available in the electronic document itself. In recent years, legal doctrine has adopted that administrative measures are objectified by signing them, and rightly so. The same should be applicable to acts in the form of e-documents. Examining information about an act’s issuance and the exact date of the e-signature placement within court proceedings will undoubtedly result in establishing the objective truth, a fair dispute resolution and transparency in public-private relationships.
Under the law, official documents give evidence of officials’ actions, hence information on an e-document’s creation, editing and signing with an e-signature reflected in its history should be used in court with indisputable probative force. Else, a mismatch between public and private interests will once more emerge, because the right of individuals and businesses to defend against illegal administrative actions will be greatly restricted.
Yura Mincheva
Penkov Markov & Partners
Sofia