EVIDENTIARY CONSIDERATIONS REGARDING THE USE OF BIOMETRIC AND ELECTRONIC MEANS IN THE PROVISION OF REGISTRY AND NOTARIAL SERVICES
Luis G. Correia M
Lawyer
I. General considerations
With the implementation of electronic means in the processes carried out by the Autonomous Service of Registries and Notaries (SAREN), understood as such, the granting of legal acts subject: (i) to the registry publicity regime and; (ii) authentication by a Notary Public, a regulation is introduced into our legal system that encourages the use of technological tools for the operation of public institutions. This has an impact on the proof of relationships between individuals and, ultimately, on legal certainty.
This not only represents an innovation in the regime of the legal validity of documents, but this regulation directly affects aspects and values inherent to legal traffic. It is from this perspective that the evidentiary effectiveness of these new instruments is situated, relevant not only from the point of view of Procedural Law, but also decisive in the demonstration of the substantive legal relationship whose existence is to be demonstrated.
Before the entry into force of this regulation, the question of the validity in court of the aforementioned acts was, if you like, simpler: it was reduced to contemplating the stamping of the mechanisms for verifying the authenticity and integrity of the document in question (signature of the grantors and the authorized public official, stamping of stamps of the corresponding body, which has not undergone visible material alterations, etc.), and to contrast its format (simple, certified or original copy) in order to attribute to it the probative value and the corresponding probative value.
With the implementation of this system of electronic means for the granting of notarial and registry acts, the authenticity and integrity of the instruments is guaranteed by the verification of the biometric data of the grantors by means of the fingerprint stamped on the document and by stamping of the handwritten signatures in digital format. In this way, the result is a data message verifiable by the parties that rests in SAREN’s own databases, as well as in the application of an electronic signature.
The authenticity, security, traceability and indemnity of the legal acts signed under this system depend on the electronic signature with which the SAREN individualizes and authorizes each act signed within the sphere of its competences.
It should not be overlooked that the main obstacle to the full evidentiary effectiveness of electronic documents is to demonstrate the integrity of the document as a data message, that is, that it has not been altered in any way.
As said, this innovation in the system of authentication and registration of legal transactions has severe implications in our Procedural Law, which must be studied in the light of evidentiary principles, and more specifically, the principle of regularity of evidence as the main applicable principle.
By virtue of the implementation of electronic and biometric means for the provision of the Public Registry and Notarial Service, provided for in ruling No. 525 of October 17, 2024, issued by the Office of the Director General of the Autonomous Service of Registries and Notaries (SAREN), a new question arises: What is the form of promotion and evacuation in court of these new instruments and what evidentiary effectiveness? To do this, we will try to approach the subject in the light of the applicable rules, principles and general notions of the General Theory of Evidence.
II. Principle of regularity of the test
The principle of regularity of evidence, also referred to by the doctrine as the principle of the formality and legitimacy of evidence[1], is one of the fundamental principles of evidentiary activity, which suggests that this activity, understood as one of the fundamental axes of the process -if not the most decisive-, must necessarily be subject to certain formalities that provide it with guarantees for the parties. These guarantees may include: (i) publicity; (ii) that they be provided to the process in a transparent manner for the parties and, (iii) in general, probity and veracity for the evidence produced in trial by the parties[2].
On the other hand, it should be noted that this principle is not exhausted by the mere existence of the formalities to which the different means of evidence are subject for their validity and effectiveness in the process. It is this principle that determines how the evidence must be brought to the process so that it can be evaluated by the Judge and have the effect that the parties expect it to produce. In this way, this process has a double composition or, in other words, its study can include two fundamental aspects, which have been consecrated by the doctrine in the following terms:
“This principle has two aspects: according to the first, for the evidence to be valid, it is required that it be brought to the trial with the procedural requirements established by law; the second requires that morally lawful means be used and by whoever has the legitimacy to adduce it.”
As we can see, this principle pursues the essential function of ensuring that the evidentiary activity of the parties to the dispute is subject to compliance with formalities that guarantee effective control and contradiction by the non-promoting party of the media, which ultimately translates into guaranteeing the right to defense.
This principle finds its fundamental regulation in our law in Articles 395 and 396 of the Code of Civil Procedure[3], which regulates the general conditions for the promotion of the means of evidence admitted in our system, as well as in Article 429 which provides for the regime of regularity of documentary evidence[4].
Whatever the means of evidence, it must be legally incorporated into the process so that it can be evaluated by the judge, who will attribute to it the probative value that corresponds to the nature of the instrument or the rules of sound criticism when applicable.
III. Possible scenarios
We must start from the assumption that we are facing a novel solution for our legal system, which is not entirely compatible with the technological infrastructure available to the Judiciary -in particular-, and which therefore has not been sufficiently resolved by case law.
However, while it is true that the Cassation has had ups and downs in terms of the evidentiary effectiveness of data messages, the reality is that with the implementation of this new system, the acts between individuals that are commonly discussed in court – such as contracts and assemblies – are contained in a public or authentic instrument in digital format. thus making applicable the provisions of the Infogovernment Law and the Data Message and Electronic Signatures Law.
Although the above is not absolutely new, since there was already experience with the systems of legalization and obtaining the Hague Apostille certificate, perhaps due to the nature of these acts and the destination they usually have, their evidentiary effectiveness was relegated to the background.
In accordance with the above, we must understand that digital documents are nothing more than data messages[5], so their validity and evidentiary effectiveness will be subject jointly to the regime provided for in the Law on Data Messages and Electronic Signatures, that is, to the analogous application of the provisions applicable to documentary evidence when applicable, by virtue of the principle of functional equivalence.
We are of the opinion that by virtue of the principle of regularity of evidence and other evidentiary principles, such as the principle of indemnity of evidence, data messages must be reproduced in court in native format. However, in the case under study, there are two challenges that must be overcome, namely: (i) a technological and infrastructural barrier that hinders the access of the Administration of Justice and the parties themselves to the data messages in their native format[6], and (ii) the need to evacuate evidence that complements the validity of the data message.
With all of the above in mind, we would like to suggest the following possible solutions:
a. Promotion and evacuation of the entire document in printed format
The first thing that must be considered when legally incorporating a document that is essentially electronic (data message) into the process is that it must be incorporated into a computer medium (such as CD storage units, USB Micro SD, etc.) or by sending it electronically through the Internet[7].
However, the situation under study presents in its essence a substantial difference with respect to a more traditional one, such as the evidence in the file of photostatic reproductions of emails or messages exchanged through instant messaging applications or social networks. These scenarios would correspond to the second challenge described above, that is, the need for a complementary means of evidence, such as computer expertise, which guarantees the integrity of the data message and can then be assessed by the Judge as it is legally incorporated into the process and has the desired evidentiary value[8].
This would not be the case since, as can be seen in the documents signed through the new electronic regime, these are subject to an electronic signature incorporated in accordance with the provisions of the Data Message and Electronic Signatures Law, and consequently in the case provided for in the second paragraph of Article 6 of that Law, that is: “When for certain legal acts or transactions the law requires the handwritten signature, this requirement will be satisfied in relation to a Data Message by having an associated Electronic Signature“.
The latter seems to be complemented by the provisions of Articles 26 and 27 of the Infogovernment Law[9] and 25 of the Law on Registries and Notaries[10], so that the regularity of the photostatic reproduction of the electronic public document is, in accordance with what is enshrined in these provisions, regularly incorporated into the process.
The aforementioned legal provisions resemble the evidentiary effectiveness of electronic public documents to that of their physical equivalents, reducing the technological barrier of promoting the data message as a means of proof on a computer medium. They also require the concurrence of two requirements for the validity of digital public documents that seem to be satisfied with the instruments granted under the new regime for granting documents, namely: (i) that they have an authorized electronic signature and (ii) that they have a unique code that allows their subsequent verification.
Without confusing the notions of electronic signature – a document security and integrity mechanism – with that of QR code – a form of subsequent verification –[11] the truth is that the instruments granted under this new system have a true electronic signature validly incorporated into the data message according to the legal provisions (Data Message and Electronic Signatures Law and Infogovernment Law), the result of which can be easily verified by the parties -guaranteeing control and contradiction-, the photostatic reproduction of the data message would seem sufficient for its incorporation into the process to be in accordance with the principle of regularity of evidence, consequently having the corresponding probative value depending on whether it is a registered public document or, failing that, an authenticated document.
At this stage, perhaps the difficulty arises at the time of carrying out the control and contradiction of the instrument, since, if it is considered that the photostatic reproduction of an authentic or registered document in digital format, must have probative value as a public or authentic document as long as the legal provisions relating to the integrity of the data message are complied with, The control and contradiction should, in principle, be done by crossing out the instrument, not by merely challenging it as if it were a simple data message.
This raises the question of whether an instrumental strike can be proposed, either incidentally or principally, against an electronically signed document; or whether, on the contrary, complementary means of proof that demonstrate the falsity of the instrument will suffice, such as computer expertise or proof of reports.
b. Other possible scenarios
We would not like to close the issue without trying to provide an approximation of the answer to the following question: will it be enough to present in the record the result of the scanning of the QR code stamped on the authentication note?
Without sounding like a definitive answer, we consider that the answer in the first place is no, since this would not allow the entire document to be evidenced, so the integrity of the data message would be damaged and thus its legitimate incorporation into the process.
Notwithstanding the foregoing, if we believe that a principle of written proof could be established, the plaintiff would have the opportunity to complement its veracity and authenticity by using other means of proof such as computer expertise or even the photostatic reproduction of the complete instrument.
IV. Closing Considerations
To conclude, we consider that the implementation of technological tools for document authentication represents a positive innovation in our legal system, which we hope will encourage the adoption of these tools in other branches of law, in order to guarantee values such as the security and integrity of data messages, which ultimately translate into guarantees of legal certainty and social peace.
[1] Devis Echandía, H. General Theory of Judicial Evidence. Page: 118. Editorial Víctor P. De Zavalía. Buenos Aires, 1966.
[2] Devis Echandía, H. Ob. Cit.
[3] Article 395: “Admissible means of evidence in court are those determined by the Civil Code, this Code and other laws of the Republic. The parties may also use any other means of proof not expressly prohibited by law, and which they consider conducive to the demonstration of their claims. These means shall be promoted and evacuated by applying by analogy the provisions relating to similar means of evidence contemplated in the Civil Code, and in their absence, in the manner indicated by the Judge.” Article 396: “Within the first fifteen days of the evidentiary period, the parties shall present all the evidence they wish to use, except as otherwise provided by law. However, the parties, by common agreement, at any stage and degree of the case, may have any kind of evidence in which they have an interest evacuated.”
[4] Art. 429. “Public and private instruments recognized or legally considered to be recognized may be produced in court in originals or in certified copies issued by competent officials in accordance with the laws.”
[5] In accordance with the provisions of Article 2 of the Data Message and Electronic Signatures Act.
[6] As is, for example, the lack of a digital file.
[7] Urdaneta B, José V. Data messages and electronic signatures. Academy of Political and Social Sciences. Caracas, 2010.
[8] This is on the understanding that the Law on Data Messages and Electronic Signatures attributes to these instruments the same probative value as to private instruments, so being unknown, it is necessary to prove their authenticity through computer expertise.
[9] “Article 26. The electronic files and documents issued by the Public Power and the People’s Power, which contain electronic certifications and signatures have the same legal validity and evidentiary value as the files and documents that are in physical form.” “Article 27. When the Law requires that a document must be presented in printed format and is in electronic format, such requirement is satisfied when it is presented in printed format and contains a unique code that identifies it and allows its retrieval in the corresponding institutional digital repository, in accordance with the regulations governing the matter.”
[10] “Article 25. The electronic signature of the Registrars or Notaries Public or Notaries Public shall have the same validity and evidentiary effectiveness that the law grants.”
[11] Orta, R. QR code vs electronic signature in Venezuela. https://raymondorta.com/codigo-qr-vs-firma-electronica-en-venezuela/
Contacts:
LEĜA Abogados
infolaw@lega.law
+58 (212) 277.22.00
www.lega.law
Luis G. Correia M.
lcorreia@lega.law
+58 (0212) 277 2200
The objective of the LEĜA Perspectives is to provide information to the clients and related members of LEĜA Abogados. This LEĜA Perspectives reflects the point of view of its author. Readers should not act on the basis of the information contained in this LEĜA Perspective, without first obtaining specific legal advice. This LEĜA Perspectives can be reproduced, in whole or in part, always indicating its author, source and origin in a prominent way.
©2022 LEĜA Abogados.