Atto notarile elettronico e dematerializzazione delle procedure: sfide tecniche e giuridiche - CONCLUSIONS
Data analysis carried out by the Institute of Statistics in Italy shows that the use of computerised communication of information is growing. The Government is investing in a series of projects aimed at promoting the use of IT tools.
It is developing, in particular, the "public system of digital identity" (SPID) that will allow citizens and businesses to access the online services of the Public Administration and of participating private companies by way of a single digital identity.
In the health services field central, regional and local authorities are working on the computerisation of the prescription cycle through the implementation of a common solution known as the citizen's Electronic Health Record (FSE).
In the legal sphere, the "Electronic Civil Trial" (PCT) has been introduced, allowing for the
computerised management of notifications and communications of the Court, injunctions, individual civil and bankruptcy executions, acts of the court (e.g. minutes of hearings, measures under consideration by the court and judgements) and submissions by the parties (e.g. memoranda and appeals).
The Public Administration (civil service) is working on the computerisation of administrative procedures by automating the processes of document management.
The first legislative measure in Italy which expressly recognised the legal status of computerised deeds was Article 15 Paragraph 2 of Law no. 59 of 15 March 1997; the matter is now governed by Legislative Decree no. 82 of 7 March 2005 entitled Code of Digital Administration, which is currently the basic point of reference in the field.
The Digital Administration Code covers four types of signatures (electronic, qualified, advanced and digital signatures) that differ substantially in terms of technology, effects, and legal, evidentiary and security value.
The probative value of electronic documents is governed by Article 21 of the Code of Digital Administration which states that "the electronic document to which an electronic signature is appended may be freely considered as evidence in court, taking into account its objective characteristics of quality, security, integrity and immutability".
If instead an advanced, qualified or digital signature is used, the probative value of the electronic document corresponds to that of a private agreement signed by hand.
The digital signature has the same functions that characterise the autograph signature; it makes it possible to identify the author of the document and to prove the authenticity of the document; the statements in electronic documents are attributed to the owner of the device.
In creating an electronic public deed the notary must use a digital signature, while the parties may use a simple electronic signature. In the performance of their duties, notaries use digital signatures issued by the National Council of Notaries which guarantee not only the validity of the digital signature itself, but that the holder of the signature is in fact a currently practising and authorised notary.
As for the method of creating a contract as an electronic public deed, Article 47 bis of the Notarial Law introduced by Legislative Decree no. 110/2010 stipulates the reading of the deed by the notary in the presence of the parties; likewise a paper-based deed may be contracted only with the simultaneous presence of all the parties.
The notary must read the deed (even directly from the computer), make any necessary changes
at the time of signing and then save it in PDF-A format. The file so formatted must be signed by all the parties before the notary, and finally by the latter, after checking the validity of the signatures.
The possibility has recently been discussed of executing electronic public deeds remotely; this option would be limited to certain types of deeds and would have to foresee the maintenance of the current level of security and certainty of notarial deeds.
The signing of a deed at different times by parties unable to be present simultaneously is possible today only by drawing up the contract as an authenticated private deed. The contract is signed and the notary certifies the signatures one by one as they are affixed, thus verifying the legality and validity of the deed in the same way as prescribed for a public deed.
The notary can authenticate both the autograph signature and the electronic one; this is governed
by Article 25 of the Digital Administration Code.
Analysing statistics for the creation of notarial deeds, it is easy to see that in the drafting and signing of contracts there continues to be a marked preference for the traditional paper model. This was due in previous years to the absence of legislation on the conservation of notarial deeds, a gap that was filled only in 2010 with the rules on electronic public notarial deeds. Now, however, under current legislation, a citizen is free to choose a public document in either electronic or paper form, so long as he is equipped with the relevant signature device. In fact, only a very low percentage of notarial deeds are created in electronic form, given the greater complexity for the notary in the engrossing and conservation procedures and the almost total absence of electronic signatures amongst private citizens.
The use of the computerised method, then, is limited by the small number of electronic signatures
among the public and the difficulty of having tools available for rapid and secure signing; on this point the National Council of Notaries is working to try to identify new technological tools that will allow the rapid preparation and signing of electronic public documents.
Specifically, the Italian Notariat has in recent months presented iStrumentum, a special software product which will enable citizens, once it has been progressively made available to all notaries, to sign their own electronic deeds in absolute safety and simplicity. This new software will not only insert the signature image into the document, "capturing" the graphic image inserted, but will, thanks to specific sampling, acquire a set of biometric data on each signatory, with particular characteristics offering a high degree of certainty. The signature of each person signing a deed will then be linked to the writing time, the pressure exerted on the tablet, the position of the hand, the speed, acceleration and rhythm during signing and even the inclination of the pen: criteria that ensure maximum safety, creating an unbreakable bond between the biometric characteristics of the signer and the signed document.
The client, then, according to preference, can decide whether to request that the document to be signed be in paper or electronic form.
The use of electronic public contracts is so far obligatory only for supply contracts signed with the public sector: these account for almost all the electronic deeds produced by Italian notaries. The other deeds that are prepared electronically are mainly powers of attorney, which can thus
be transmitted more easily to different notaries spread all over the country.
As regards copies of electronic deeds, these may be issued by the notary either in hard copy or digital format.
The digital notarial copy, furthermore, can also include documents originally received on paper. This capability allows notaries throughout the country to exchange copies of their respective deeds in real time, with enormous advantages in terms of time and security.
An electronic copy signed digitally by a notary is, in fact, from all points of view an authentic copy once the "receiving" notary has verified the validity of the Colleague's signature, and it can easily be printed and attached to a deed in paper form.
In general, the power of authentication and certification of conformity of copies is restricted to public officials; however, a recent measure that was enacted as part of the computerisation of court documents should be noted.
Paragraph 9 bis of Article 16 bis of Legislative Decree no. 179 of 18 October 2012, introduced by Legislative Decree no. 90 of 21 June 2014, did in fact attribute to lawyers a limited power of authentication of court documents.
Electronic notarial deeds are retained by notaries, who maintain exclusive availability for the issuance of copies for as long as they exercise the profession. The notary who handles the contract adds it to his own archive located in a centralised electronic facility at the National Council of Notaries.
The costs of conserving archives are paid entirely by notaries. The decision to centralise the conservation facility within a single entity has allowed the costs for the individual practitioner to be lowered; nevertheless, he still pays an annual fee for the maintenance of the service.
As for the communication of notarial deeds to entities of the public administration, the Italian Notariat has - in recent years – expended considerable innovative effort over its document management processes in order to achieve efficient and effective interaction with the Public Administration, using to the full the features offered by the legislation on new technologies and the legislation on electronic documents and digital signatures (Presidential Decree 445/2000; EU Directive CE/93/99).
The electronic modernisation of the notarial profession was handled directly by the Italian Notariat by establishing Notartel S.p.A., a company whose shareholders are the National Council of Notaries (90%) and the National Fund of Notaries (10%). It was set up on 30 July 1997 in order to achieve the strategic aims of the Notariat regarding information and telecommunications technologies. These aims are defined through the study and design activities of the CNN's IT Commission which includes not only representatives of the profession but also external specialists having an academic background.
This company has built and manages the private computer network dedicated to notaries known as the Unified Notarial Network, which, by following the constant evolution of the computerisation of the Public Administration, has been able to establish legally valid interconnections with databases of the Public Administration. The network ensures dialogue with the Tax Office, with the Land Registry, as well as with the Chamber of Commerce and the Companies Registry.
The computerisation of notarial activities, therefore, can now be said to be almost complete as regards real estate and company deeds, with the ability to carry out searches, checks, lodgements and registrations on-line.
In addition, work is proceeding on the first links with the births, deaths and marriages databases of the municipalities and the National Registry of Births, Deaths and Marriages held at the Ministry of Internal Affairs, in order to minimise the need for applications for certificates from citizens wishing to enter into a contract, while safeguarding the need for accuracy and reliability of the data contained in documents "endowed with public faith" such as notarial deeds.
In particular, it is now becoming possible to send matrimonial agreements on-line to the municipalities (via certified e-mail); these must be entered in their registers of marriages.