e-Justice paradigm and Artificial Intelligence (AI): where effective judicial protection stands?

Artificial Intelligence Technology Futuristic

 by Joana Abreu, Editor

2019 marks the beginning of a new era for e-Justice.

Looking at both Council’s e-Justice Strategy (2019/C 96/04) and Action Plan (2019/C 96/05) from 2019 to 2023, we are able to understand how this European institution is engaged to establish sensitivities on Artificial Intelligence in justice fields. Furthermore, the European Commission also presented a report on the previous Action Plan (Evaluation study on the outcome of the e-Justice Action Plan 2014-2018 and the way forward – Final Report – DT4EU), where it advanced the need to bet on artificial intelligence mechanisms in the e-Justice fields.

In fact, the European Commission, when questioned stakeholders on the possibility of using Artificial Intelligence technologies in the domain of justice, 41% understood it should be used and other 41% understood its potentialities could be explored.

Taking into consideration those numbers, the Council also established the need to understand AI’s influence and potential on e-Justice fields, addressing it under the topic “Evolutivity” and relating to future perspectives.

However, it seems to us this path is already well established and AI’s influence and importance on e-Justice fields is already being object of further discussion. Under this conviction, we aim at understanding if the developments are able to cope with effective judicial protection demands since e-Justice has, as its grounding and teleological reference, this fundamental right (Article 47 of the Charter of Fundamental Rights of the European Union – CFREU) and general principle of EU law [Article 19 (1) (2) of the Treaty of the European Union – TEU]. Insofar, EU bet on e-Justice fields because it was able to understand particular difficulties that were posed to individuals and companies to enforce their rights before a competent court, especially when the litigation was able to adopt a cross-border configuration. There was the belief of providing better right to action, defence rights, impartial and independent courts and a quicker mean to access judicial operators (namely lawyers, but also notaries and other legal professions in other Member States) that enhanced e-Justice importance and made its electronic feature as important as it can be perceived nowadays.

Therefore, several steps have been taken by several European institutions on AI, namely by establishing its development and application cannot be able to undermine “Union’s values and fundamental rights”, as advanced by the European Commission on its Communication on AI from April 2018, acknowledging that “AI can significantly improve public services”, especially because it has the “potential to analyse large amounts of data”. On the matter, the Commission also established a High-level Expert Group on AI which revisited the notion of AI and drafted the “Ethics Guidelines for trustworthy AI”.

On 8th April 2019, the European Commission issued a press release where this institution shown those “Ethics Guidelines” are a deliverable under the AI Strategy. For Andrus Ansip, an “[e]thical AI is a win-win proposition that can become a competitive advantage for Europe: being a leader of human-centric AI that people can trust”.

Therefore, to achieve a trustworthy AI, the Commission, under the Expert Group draft, underlined the following: “human agency and oversight” (AI systems must be thought and implemented not to limit, decrease or misguide human autonomy); “robustness and safety” (algorithms have to be safe and reliable); “privacy and data governance” (everyone have to control their data, which cannot be used to harm or discriminate them); “transparency” (AI systems must be traceable); “diversity, non-discrimination and fairness” (these systems have to take into consideration a wide range of human capacities, assuring accessibility); “societal and environmental well-being” (AI systems must potentiate a “positive social change”, enhancing sustainability and ecological responsibility); and “accountability”.

All these features aim at establishing an “human-centric” AI, since these technologies have to be established and developed so humans can benefit from them and not to set them to a more modest and unknown place.

As perceived by the Commission, the EU is in a place where it can influence global discussion over AI and, taking into consideration that “human-centric” approach on AI, will build international consensus on the matter. This theoretical approach gains relevance in legal domains, particularly in justice fields.

Furthermore, the Working Party on e-Law (e-Justice) has been meeting in Brussels, where the topic “Innovative uses of technology – artificial intelligence” is being addressed. Under this topic, the European Ethical Charter on the use of artificial intelligence (AI) in judicial systems and their environment was presented by the Council of Europe, which standards of fundamental rights’ protection are also embraced in the EU, as minimum standard to be pursued.

From this Charter and the sensitivities European institutions are personifying, it appears to us that effective judicial protection’s dimensions are able to be enhanced by AI systems. In fact, as an human-centric interest, AI systems are perceived to enhance efficiency and quality of justice but not to, in any case, undermine fundamental rights or to change the grounding of how justice systems worked so far – as enhanced by the Council of Europe, “judicial decision processing by artificial intelligence […] is likely in civil, commercial and administrative matters, to help improve the predictability of the application of the law and consistency of court decisions”. Therefore, these AI systems are not aimed at replacing judicial operators but only to facilitate their workload, fulfilling transparency, impartiality and equity demands.

Last 9th April 2019, the third edition of the Digital Day (2019) (https://ec.europa.eu/digital-single-market/en/news/digital-day-2019) happened in Brussels to enable both EU and Member States “to pool resources to accelerate digital developments in key areas that can being tangible benefits to our economies and our societies”; one of those key areas was, precisely, AI ethical guidelines (https://ec.europa.eu/digital-single-market/events/cf/digital-day-2019/item-display.cfm?id=23428). As we were able to show, the time to discuss AI is now and it is important to establish its approach on e-Justice domains.

Pictures credits: Artificial intelligence…by Max Pixel.

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