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LAURE MILANO

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was consistent with the principle of effectiveness of domestic remedies.
The Court believes that the procedure under Italian law is compatible
with EU law provided that the judge of the national court verifies that
the conciliation procedure is not only available via electronic means, as
that could make access to conciliation virtually impossible or excessively
difficult for litigants who do not have internet access.
The other difficulty that the use of ICT may generate, which is closely
linked to the first, relates to the discrimination it may cause.
First, as noted by the Court of Justice, electronic communication should
not be the only means available to exchange with the jurisdictions, which
would impede the right of access to a court for those who do not have
the possibility of using modern means of communication.
On the other hand, the idea is often put forward of a two-speed justice
for proceedings without mandatory representation, between those applicants with the means to make direct use of legal practitioners, who will
therefore be better advised, and those lacking this possibility, who will
have to be satisfied with the information available to them via ICT and
therefore use the Point Visio-Public booths, for example. Nevertheless,
the benefits of ICT should not be confined only to proceedings with
mandatory representation.
It does seem that this criticism of the risk of a two-tiered justice is a
false problem. The imbalance of financial relations between the parties
creates an imbalance of legal means, and the cost of justice inevitably leads
to discrimination regarding access to justice. The European Court allows
systems which filter applications for legal aid, including for procedures with
mandatory representation.22 The Court is aware that there is a principle of
reality and that it cannot impose obligations on States that they would
not be able to fulfil. That is why an application that alleged discrimination
in access to justice due to the use of ICT would have very little chance
of success, except in the event that recourse to ICT would be the only
means of action for the litigant.

II – ICT AND FAIR TRIAL
We must first distinguish between the rights stemming from the judicial
function, i.e. the rights inherent in the office of the judge, and the rights
stemming from the judicial protection of the litigant.

A. Rights stemming from the judicial function
These are rights relating to the status and mission of the judge, i.e.
independence, impartiality, and the power to pass judgment. ICT may
22. Essaadi v. France, No. 49384/99, 26 February 2002, ECHR.

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