COVID-19 poses major changes to much of the world, and Peru is no exception. As in the UK, the Peruvian judiciary has responded by attempting to implement technological solutions into its organisation and procedures. However, a comparison of the Peruvian experience with British efforts highlights Peru’s additional financial and social problems which have impacted the implementation of technology (these issues include internet access, the use of digital tools and no previous experience with alternative online dispute resolutions). These issues have delayed the implementation of technology, and the resulting slow reactivation of the Peruvian judiciary during the COVID-19 crisis has taken away justice and jobs from thousands of Peruvian citizens. A comparison with the UK reveals that the digitalisation of justice requires more than pure will to change. In fact, such implementations often require a willingness to engage with problems unique to its socio-economic context. In Peru, this means an appreciation of limited financial resources and the need for improvements in other areas of society.
Clearly, the use of technology by the judiciary in different parts of the world has produced a plethora of different experiences. In 2016, the British government launched a program of court reform to use technology to improve legal services in the administration of justice and invested around 1bn pounds in this.[1] In 2017, so lawyers, clients and civil servants would similarly take advantage from technology to provide improved legal services, the Peruvian government approved Administrative Order N° 005-2017-CE-PJ to implement CE File systems as a tool for electronic filing and case management in the judiciary.[2]
A remarkable difference with the British reform is that despite the Peruvian CE File starting as a project at one of the most important Peruvian courts (Lima), the project did not receive financial support from the government, and it works with its own financial resources. That is why the implementation of the Peruvian CE File is slow and has required financial help from the World Bank, which approved a loan to increase the number of Peruvian courts using CE File systems in December 2018.[3]
It is worth mentioning that the introduction of technology as a solution to British legal issues did not start with online courts. In fact, the previous introduction of online dispute resolution has been key to the success of current British reforms.[4] Sadly, online dispute resolution in Peru could never really take off. Among other reasons, less than half of Peruvian households have internet access at home.[5] This put online hearings and the use of digital tools for dispute resolution were beyond the reach of the majority of Peruvians.
That is not to say the majority of Peruvians don’t use smartphones or other digital tools, but rather that Peru is still very far from the introduction of technology into the legal profession and judiciary activities. For instance, the Peruvian government waited until the end of 2019 to authorise a group of Judicial Branch Officials to use a digital signature, and the government has not encouraged the use of digital tools among users of the services offered by the judiciary.[6] As a result, legal digital experiences such as virtual mediation rooms or automated negotiation are not as popular or accepted in Peruvian society as they are in British society.[7]
That is likely why when the Peruvian government announced the lockdown due to COVID-19, thousands of litigants and citizens did not know how to use technology in their favour to solve legal issues. In fact, technology seemed an obstacle rather than a tool because thousands of lawyers and judges had not used digital solutions.
Notably, the UK itself was not an example of effective IT government until 2011 when the Government Digital Service reshaped all services offered by the government and introduced digitalisation.[8] This change signified a huge step forward into leadership in e-government that Peru has attempted to replicate since 2018 by the implementation of a single digital platform for the Peruvian government.[9] During the COVID-19 crisis, the Peruvian digital platform was helpful to find a digital alternative to procedures handled by the Peruvian judiciary (such as criminal and police records, information from court records, electronic notification) but not everyone knows it exists.
The digitalisation of tribunals in Peru and the UK have similar goals such as effective justice and reducing bureaucracy.[10] However, before the lockdown due to COVID-19, there was no strategy to encourage Peruvian lawyers to use CE Filing systems or other digital tools for dispute resolutions, and the majority of lawsuits or any document submitted into the CE File server required the physical attendance of lawyers.[11] This led to digitalisation of the Peruvian judiciary during COVID-19 being a challenge for Peruvian authorities since they had to overcome social and technical obstacles, besides the financial problems.
Therefore, COVID-19 found the Peruvian judiciary in a very problematic situation, resulting in three months without judicial attention to all but the most serious crimes, such as gender-based violence, bribery, or human rights violations. The judiciary attends to these exceptional cases using online and physical court hearings.[12] However, the remote attention provided by the Peruvian judiciary has been substantially ineffective due to the lack of internet access for the majority of Peruvian households, mainly in rural areas.[13] This created a new issue, in that the lack of access to the internet itself became, and remains, an obstacle in access to justice for many Peruvians.
It is important to note that before the lockdown, most Peruvians used the Internet for entertainment and communication,[14] rather than banking transactions or e-commerce,[15] very different from the British experience.[16] As a result, the implementation of online courts and online hearings is a brand new experience for many Peruvians, and the government should ensure the protection of privacy, fraud protection, as well as the benefits of effective online justice.
The lack of access to justice is a problem for Peruvian lawyers as well because thousands of litigants, law firms and legal consultants have reduced the number of practitioners and lawyers working for them. The main reason for the cuts is the lack of online dispute resolution alternatives, and the low percentage of clients with internet access to use digital tools as part of a solution to legal issues.
In conclusion, the Peruvian government has the will to improve the judiciary through the use of technology and CE File systems, which would help to quickly solve legal issues during and after COVID-19. However, in comparison with British reforms, Peru still needs to address social problems that require financial resources to fix and impact on access to justice for the majority of Peruvians, such as internet access. Furthermore, it is important investigate how we can use technology for efficient and safe responses in legal controversies and encourage the practice of online dispute resolution. After all, in a country with a low percentage of digital inclusion, online courts and digital justice could mean a violation of fundamental rights for those digitally excluded, and exclusion that the government should not ignore.
[1]https://www.gov.uk/guidance/the-hmcts-reform-programme#background-to-reformaccessed 22 June 2020.
[2]Administrative Order N° 005-2017-CE-PJ (Resolución Administrativa N° 005-2017-CE-PJ) (Peru).
[3]http://eje.pe/wps/wcm/connect/eje/s_eje/as_prensa/as_noticias/cs_n-tecnicos-del-banco-mundial-evaluan-avances-del-eje-21122018, accessed 20 May 2020.
[4]Public Law Project “PLP Research Paper The Digitalisation of Tribunals: what we know and what we need to know” (UK Administrative Justice Institute, 2018) 13-4 https://publiclawproject.org.uk/wp-content/uploads/2018/04/The-Digitalisation-of-Tribunals-for-website.pdf accessed 25 June 2020.
[5]According to the Peruvian National Institute of Statistics and Informatics, during the first quarter of 2020, 40 per cent of Peruvian households have a computer and internet access at home. Instituto Nacional de EstadĂstica e Informática “EstadĂsticas de las TecnologĂas de la InformaciĂłn y ComunicaciĂłn en los Hogares” (2, 2020) 5 https://www.inei.gob.pe/media/MenuRecursivo/boletines/boletin_tics.pdfaccessed 26 June 2020.
[6]Administrative Order N° 486-2019-CE-PJ (Resolución Administrativa N° 486-2019-CE-PJ) (Peru).
[7]Public Law Project (n4) 13.
[8]Ibid 11-3.
[9]Supreme Decree N° 033-2018-PCM (Decreto Supremo N° 033-2018-PCM) (Peru).
[10]https://www.gov.uk/guidance/the-hmcts-reform-programme#our-reform-programme accessed 26 June 2020, https://www.pj.gob.pe/wps/wcm/connect/eje/s_eje/as_prensa/as_noticias/cs_n_+eje_reducira_duracion_de_procesos, accessed 20 May 2020.
[11]Rolando Martel Chang “El Expediente Judicial Electrónico (EJE): la experiencia peruana” in Giovanni Priori Posada, Justicia y Proceso en el Siglo XXI (Palestra 2019) 536-7 http://vlex.com.pe.up.idm.oclc.org/vid/expediente-judicial-electronico-eje-797856389 accessed 20 May 2020.
[12]https://justiciatv.pj.gob.pe/juzgados-y-salas-del-pais-realizaron-1-mil-887-audiencias-virtuales-durante-un-mes-de-emergencia-por-covid-19/, accessed 25 May 2020.
[13]In Peru, 62.9% of households living in the capital (Lima) have a computer with internet access, 40.5% of households in other urban areas have a computer with internet access, and only 5.9% of households in rural areas have a computer with internet access. Instituto Nacional de EstadĂstica e Informática (n 5).
[14]Ibid 40.
[15]According to the Lima Chamber of Commerce, 23% of Peruvians who have access to the Internet make purchases online https://www.mercadonegro.pe/retail/el-23-de-los-peruanos-compra-por-internet-segun-la-ccl/ accessed 26 June 2020.
[16]https://www.statista.com/topics/2333/e-commerce-in-the-united-kingdom/ accessed on 26 June 2020.
