[1] “Information Technology and Enforcement Proceedings – Challenges and Obstacles”
Janek Pool
Chairman of the Bailiffs Assembly
Ladies and Gentlemen!
Contemporary public administration is going ever more networking – domestically as well as internationally. Pressure of society to increase effectiveness of public sector is growing successively stronger. People want from public sector possibly high-standard and urgent solutions to their problems. Life arrangements have also in wider scope become significantly quicker in comparison with previous times and understandably people do not have any more time to wait in long queues in order to meet officials or to run between different offices for arranging one’s documents or solving any other questions. It is assumed that public sector works by the principle of one stop shop or must be able to acquire all data and authorizations from within the system.
Hence it is necessary to go along with the latest developments. Estonia has officially recognized one of the most auspicious stars of the new technology area – blockchain technology – and is about to integrate it into its information systems outright as a basic software. Safeguarding security of the systems is considered as a great value of the technology. This solution enables to control big data volumes regularly and quickly. It is possible to control hundreds of thousands of entries simultaneously and to make sure that there have not been made any malicious changes.
Crypto money – bitcoins – are related to blockchain too. This is a technological innovation that opens a totally new page in the finance world. For the bailiffs, it is a question to be solved, how to seize crypto money and how to satisfy real claims on the base of virtual money?
Also, enforcement proceedings have not been merely a standalone institution already for a long time, but related closely to several public and private subject fields. So are IT developments on the field of enforcement proceedings also closely linked to developments of IT sector of associated fields. In Estonia, for example, there is cooperation with all banks by developing of the system of freezing of the bank account assets of debtors. In connection with upgrading of the national data exchange layer of X-road, also information systems of the enforcement proceedings must be developed. Changes in administration of state claims elicit changes in information system of enforcement proceedings. In Estonia, there has already been a case in practice where the bailiff had to seize devices for mining bitcoins in course of securing an action. This list could be continued much longer. Ever increasing coherence between the databases increases also the effect of interconnected vessels – information systems do not function as autonomous units. The question is here not only related to information technology solutions, but also to financing systems. By financing of the information systems, financing capacities of all parties must be secured.
In Estonia, all bailiffs hold the occupation in public law in their name as members of liberal profession, starting from 2001. There have been set strict restrictions to activities and remuneration of bailiffs by law and to every operation there has been established a tariff rate depending on the type and size of the claim. Financing model of private bailiffs is not oriented to development of IT solutions. In Estonia, there is a problem that bailiffs are not able to keep abreast of national initiatives by development of information systems – in latest times, for example, application of maintenance allowance, restriction of rights of debtors of maintenance allowance, changes in data sources accompanying work ability reform, etc. A continuous discussion about the size of the fees of bailiffs and unexpected political decisions on amending fee rates do not enable to envisage stable resource basis for development of the IT systems.
Lack of the stable resource basis in enforcement proceedings is going to hinder inevitably also information technological capacity of the public sector as a whole. Several national authorities like the Police and Tax Board develop their information systems by means of budgetary resources apace also for data exchange with bailiffs, but lack of relevant development resources on the side of bailiffs does not enable the national authorities to enforce their information systems in envisaged volume either and the needs are continuously unsatisfied. While speaking about connections of enforcement proceedings and information technology, one of the main arising problems is lack of resources, or, to be more exact – its concentration on single aspects only.
In the society, there is spreading an attitude that fees of bailiffs are very high and that bailiffs live very rich. As the votes of debtors have a big role in elections, the Parliament enacts new laws by means of which the fees of bailiffs are decreased, or new tasks are assigned to bailiffs without financial coverage.
As the bailiffs operate in form of a liberal profession and they are not financed from the state budget, then low or missing influence on state budget is stated in the impact analysis of amendments. This way passage of draft legislation by Parliament is secured. IT developments are expensive, but number of bailiffs is small. Hence there may remain a false impression that developments in field of enforcement proceedings are not cost-effective and it will be more difficult for the bailiffs to acquire public resource to these. Simultaneously, without the developments it is not possible to conduct enforcement proceedings effectively.
For achieving objectives of enforcement proceedings, securing of accuracy and timeliness of data in registries is of critical importance. There are registries, data of which are purely informative and other registries, data of which have legal meaning. For example, in Estonia have data of the traffic register only an informative meaning that makes it problematical to establish the actual owner of a vehicle at a certain moment. For electronic data exchange, in Estonia have been developed a secure data exchange layer X-road. Data traffic conducted on standard basis makes the data promptly available.
 As a new issue, in Estonia there has emerged the obligation of bailiffs to justify to data subjects the reasons for looking up their data. This question has been initially raised only in respect of the population register data where people are able to check which authorities and when have looked up the data related to their place of residence and data of the persons related to them. The state is planning to widen the relevant service also to other registers. This has adversely affected the bailiffs as until now the principle of enforcement secrecy has been in force – data about enforcement proceedings being conducted are disclosed to the parties of proceedings only, but not to unauthorized persons. The bailiffs are obliged to apply all measures for enforcement of a claim, hence they must get all data related to the debtor and his/her property without justifying the need for data additionally. This new service has simultaneously brought along a number of complaints and requests for explanation where the data subjects require justification for looking up their data. Thus, it is necessary to specify relation between the needs of enforcement proceedings and rights of data subjects by determination of the extent of data processing.
By developing of IT programs, it must be kept in mind that these would secure flexibility for the bailiffs in procedural activities (e.g. these must not include procedural restrictions that would not proceed from law). Information technology must enable to elaborate work processes depending on work arrangements of the bailiff’s office. These are the points that must be considered as the bailiffs act independently and on their own responsibility. In comparison with information systems of national central authorities, such a variability will make the structure, development and maintenance of the information systems materially more complicated and costly. There will inevitably emerge the tendency towards centralization, equalization of procedural activities and work arrangements. But herewith it is ever more deviated from basic principles – independently conducted by the bailiffs’ proceedings. Here we encounter again the issues of efficiency and procedural economy.
In Estonia, the most important procedural activity in enforcement proceedings is the delivery of an enforcement notification. The enforcement notification can also be delivered electronically – either via special environment or also directly to the e-mail address. In case of electronical delivery, there will emerge the question how to establish that the document has been received by the person who claims to be this very person? If in case of physical delivery, the bailiff must ascertain identity of the person who receives the document, then by electronical delivery, bigger responsibility lies on addressee. The addressee must ensure that his/her contact data are correct, there are no interruptions in electronical communication, that the e-mail box is not full, the ID card and passwords are not used by other persons, etc. If this is not done, then electronical delivery of a document is excluded. But here raises also a question whether the IT based solutions in work processes simplify evasion from enforcement proceedings of those debtors who are far from information technology? Or, the more it is changed over to IT solutions in procedural activities, the easier it is to evade from enforcement proceedings for the persons who have no readiness (neither specific wish) for electronical communication (do not hold ID cards, e-mailbox, do not live in registered place of residence, do not use any bank account).
Previously I have handled the aspects where the information technology is setting requirements to enforcement proceedings and to bailiffs engaged in a liberal profession. From another side, there exist also opposite examples where possibilities offered by the information technology are not used sufficiently.
The Estonian Chamber of Bailiffs and Trustees in Bankruptcy introduced the auction environment for electronic auctions of bailiffs and trustees in bankruptcy since 2013. This has helped to extend the round of participants in auctions, has simplified to conduct auctions, and has decreased the possibility of concluding unfair agreements. There are organized more than 8,000 auctions in this environment annually, and on average every sixth auction ends with a sale (in half of these cases the sale price is higher than the initial price, the average growth of price is ca. 25 per cent). The advertisements published in auction environment have been looked for more than 10 thousand times per day that in Estonian context is a significant size.
Simultaneously, we have looked in astonishment how the national authorities and local governments transfer their property continually by proceeding oral and written auctions. It is pleasure to recognize that the Government of the Republic of Estonia considers it very important to increase efficiency of the national administration and thereby it is planned to end the activities that duplicate each other and are not further necessary for providing public services. In this context, we see an increasing role of bailiffs as performers of sale of national and municipal property subject to transfer. This is one place where the information system developed by the bailiffs could offer wider social amenity than conducting merely enforcement proceedings.
In conclusion, the trail of information technology is ever more growing in the enforcement proceedings. Information technology will surely contribute to increase the efficiency of enforcement proceedings, but this is accompanied by a great need of resources for maintenance and systematic development of information systems. Also bases for remuneration of bailiffs must consider this.