The Plenum of the Czech Constitutional Court has issued an opinion on the question of delivery of e-mails with submissions to the court and the question of the moment at which the court is served. Previous case law has been overcome in this area. The conclusion of the opinion now issued is that the moment when the submission reaches the court is considered as the moment when the submission reaches the court sphere.

Nowadays, it is common to send personal and business messages of different importance via e-mail. It is logical that e-mail with some type of electronic signature is now also used for sending documents to the court. This possibility has raised new legal issues. Previous case law on this question has held that the party must prove that the e-mail was sent to the court, which has often led to absurd conclusions.

A recent opinion of the Constitutional Court of the Czech Republic, Case No. Pl. ÚS-st. 53/21 of 7 September 2021, which overcomes the previous opinion expressed, states that in case of an electronic submission made by e-mail, the time period cannot be preserved at the moment of sending the submission as in the case of other "privileged" methods of submission, for example by post. A submission sent electronically by e-mail differs from one made through a postal service provider in the fact that there is no statutory guarantee of delivery for e-mail. The obligation to deliver on the side of the e-mail server operator is based solely on a private law arrangement, and the state cannot, therefore, be held liable for the operation of private e-mail server operators.

The Constitutional Court has stated that: "The moment when the submission reaches the court must be considered as the moment when the submission reaches the court sphere, which in the case of an e-mail submission is the moment when the e-mail message is delivered to the court's mailbox or when it is detected on the first e-mail server for which the State is responsible." It is irrelevant when the submission was actually seen by an employee of the court because that moment cannot be clearly determined in advance.

Crucial is also the fact that the path of an e-mail submission to a given court does not need to be straightforward - from the sender's e-mail server directly to the court's or the state's e-mail server. The e-mail may travel through several other e-mail servers operated by other private third parties. The state is only responsible for the functioning of its e-mail servers, such as those of courts or ministries.

If a party of the court proceeding argues that a submission was delivered late; (or not at all - author's note); due to technical problems with the e-mail on the state's side, he or she must prove this fact, a copy of the message sent is not itself considered as sufficient evidence. If an issue is proved, the delay or non-delivery cannot be a detriment to the party and such submission cannot then be rejected as late without further examination.

Headnotes of the Opinion

I. The timeliness of an electronic submission made via e-mail must be assessed according to the time when the submission reaches the court, not when it is sent by the filer.

II. The time when a submission is duly made is the time when the e-mail message reaches the court sphere; for the assessment of the timeliness of a submission, it is irrelevant when the court has taken note of it.