The European Ethical Charter of the CEPEJ on the use of artificial intelligence (AI) in judicial systems and their environment
by Clementina Barbaro
Secretary of the CEPEJ Working Group on the Quality of Justice
The European Commission for the Efficiency of Justice, better known as the CEPEJ, is the intergovernmental body responsible for promoting the efficiency and proper functioning of justice in the 47 member states of the Council of Europe. Known for its biennial report on the evaluation of European judicial systems, the CEPEJ also develops concrete tools for legal professionals in several fields: the quality of justice, judicial delays, mediation… The observers of the CEPEJ, of which the EEEI is a member, contribute to its work, both in terms of proposing work topics and developing its tools.
In recent years, the question of the use of new technologies in judicial systems has occupied an important place in the work of the CEPEJ. More recently, the CEPEJ has analysed the phenomenon of the progressive entry of artificial intelligence (AI) into the field of justice, as an instrument for guiding and supporting the work of legal professionals as well as for informing the public. While no European judicial system has introduced AI on a large scale so far, the fact remains that AI is a growing phenomenon in Europe and is intended to improve the efficiency of the quality of justice. However, its use must be carried out in a responsible manner, in accordance with the fundamental rights of individuals and the principles set out by the CEPEJ.
Indeed, while some AI applications deserve to be encouraged (think in particular of tools that make it possible to carry out legal research more quickly and with more relevant results), others – and in particular those qualified as “predictive justice” – raise a series of questions because of their impact on the office of the judge, fair trial guarantees and the rights of individuals subject to trial. One example is the COMPAS software, which is used in the United States to determine the risk of recidivism among persons in police custody and whose discriminatory effects against African-American populations have been revealed by civil society.
Faced with these challenges, the CEPEJ wished to establish an AI governance framework by adopting, on 3-4 December 2018, the Ethical Charter for the use of AI in judicial systems and their environment. This is the first text at European and global level setting out five substantive and methodological principles that should guide the integration of AI tools and services into national judicial systems. Due to its innovative aspect and the quality of its content, the Charter has established itself as a reference text by high-level European political decision-makers and representatives of national judicial institutions.
Among these principles, respect for human rights and non-discrimination is of fundamental importance. The objective is to ensure, from the design stage through to practical application, that the solutions guarantee respect for the rights guaranteed by the ECHR and Council of Europe Convention No 108. The principle of non-discrimination is expressly stated because of the ability of certain processing operations – in particular in criminal matters – to reveal existing discrimination by aggregating or classifying data relating to persons or groups of persons. Public and private actors must therefore ensure that these applications do not reproduce or aggravate this discrimination and do not lead to deterministic analyses or practices.
Some qualitative challenges related to the analysis methodology and automated processing of court decisions are also considered. A principle of quality and security is clearly stated: it should be possible to process data by automatic learning based on certified originals and the integrity of this data should be guaranteed at all stages of processing. The creation of multidisciplinary teams, composed of judges, social science and computer researchers, is strongly recommended, both at the drafting and steering stage and in the application of the proposed solutions.
The principle of transparency of the methodologies and techniques used in the processing of judicial decisions is also of great importance. The emphasis here is on the accessibility and understanding of data processing techniques, as well as on the possibility for authorities or independent experts to carry out external audits. In addition, the CEPEJ encourages the establishment of a certification mechanism in order to recognise the quality of achievements, but also to guarantee their transparency and the fairness of the information processing methods.
To implement this principle, it will be necessary to call upon professionals with solid expertise in the field of computer and data sciences… skills that could also invest the trial sphere, when AI tools are used, for example, to guide the judge’s decision. In order to ensure full respect for the principle of equality of arms, it will be essential that the party or parties have access to these tools, including key elements of their functioning, such as the algorithm and data used. The contribution of judicial experts will be essential in order to clarify how the instrument works, how it produces its results and thus achieve a real contradiction.
In addition, the Charter stresses the need to make the user an enlightened actor and master of his choices. In particular, the judge should be able to return at any time to the judicial decisions and data that have been used to produce a result and continue to have the possibility of departing from it, considering the specificities of the case in question. Each user should be informed, in clear and understandable language, of the binding or non-binding nature of the solutions proposed by AI instruments, the different options available and their right to legal advice and recourse to a court.
The CEPEJ intends to implement a series of measures to ensure a wide dissemination of the Charter among legal professionals, institutions and political actors. In addition, in practice, these principles provide an important basis for comparison to assess the characteristics of the different applications of AI, which are currently being integrated into the judicial system or at the court level in an exponential way.
The CEPEJ is at the disposal of the Member States, judicial institutions and representatives of the legal professions to assist them in the implementation of the principles of the Charter.