DIGITAL RIGHTS: Session II – Artificial intelligence, technological tools and procedural safeguards
Vasiliki Artinopoulou, Professor of Criminology at Panteion University in Athens and Director of the Institute on Crime & Criminal Justice at the European Public Law Organisation (EPLO), opened and chaired Session II – AI, Tech Tools, and Procedural Safeguards. In her introduction, she emphasised the need to continue the discussion initiated in previous work on procedural rights in the digital age.
Noting that artificial intelligence and technological tools now play an increasingly significant role in criminal investigations, she highlighted the fundamental issues they raise regarding the protection of the rights of the defence. In her view, the challenges are not only technological, but also legal and democratic. She therefore emphasised the need to strike a balance between the effectiveness of investigations, digital innovation and procedural safeguards. The aim of this session was to examine the challenges associated with the integration of artificial intelligence into criminal proceedings, whilst reaffirming the importance of the fundamental principles of a fair trial.
Following this introduction, the conference brought together academics and legal practitioners facing the challenges posed by the digital transformation of the criminal justice system. The presentations by Lorena Bachmaier Winter, Gaia Caneschi and Lorenzo Salazar, supplemented by the observations and coordination of Amedeo Barletta, provided an opportunity to examine, from various angles, the impact of artificial intelligence and digital evidence on the rights of the defence, the admissibility of evidence and the guarantees of a fair trial.
Rethinking procedural safeguards in the age of artificial intelligence
Lorena Bachmaier Winter, Full Professor of Procedural Law at the Universidad Complutense de Madrid, has put forward a forward-looking analysis of the future of criminal procedure in the face of the widespread adoption of artificial intelligence. She considers that the issue is no longer confined to the use of digital tools in investigations, but now concerns the very transformation of the foundations of criminal proceedings.
According to her, surveillance technologies, predictive algorithms and automated data analysis are often used even before an investigation has officially been opened. This development calls into question traditional safeguards based on prior suspicion and judicial oversight. She called for stronger procedural safeguards right from the data collection stage and for greater oversight of the algorithms used by the authorities.
The speaker also raised a thought-provoking question: in an environment where digital evidence is becoming ubiquitous, does the traditional model of adversarial proceedings still serve the same protective function? Finally, she believes that the defence’s access to independent IT experts is becoming an essential condition for procedural fairness
Digital evidence and the rights of the defence
Gaia Caneschi a criminal lawyer and associate professor of criminal procedure at the University of Milan, has examined the implications of digital evidence for the rights of the defence. She explained that the current issue is no longer one of access to data, but rather the actual ability to challenge it effectively.
In many cases, the authorities provide the defence with vast amounts of digital data, which lawyers do not always have the technical means to analyse. In her view, this situation creates a profound imbalance between the prosecution and the defence. She criticised the tendency of courts to treat digital evidence as inherently reliable, even though it relies on software and technical processes that are prone to error.
Her submission also drew on the case law of the European Court of Human Rights, which requires effective oversight of data collection and processing methods. She concluded that the right to a fair trial now entails access to technical expertise enabling the integrity, authenticity, and reliability of digital evidence to be verified.
Towards a practical framework for the use of digital evidence and AI
Lorenzo Salazar, Senior Advisor on International Cooperation in Criminal Matters, Chair of the Council of Europe’s European Committee on Crime Problems (CDPC) and former Deputy Public Prosecutor at the Court of Appeal of Naples, presented the operational results of the Digital Rights project as well as the ‘Soft Guidelines’ drawn up for practitioners.
He emphasised the growing importance of digital data in criminal investigations, noting that nearly 85 per cent of evidence today is digital in origin. Faced with a massive increase in data volumes, he highlighted the difficulties encountered by judges and lawyers in understanding, verifying and utilising the information produced by digital forensics and artificial intelligence tools.
He emphasised the need for greater transparency in technical processes and for human oversight to be maintained when analysing the results produced by algorithms. Key recommendations include the early activation of the rights of the defence, effective access to digital evidence and the guarantee of ‘equality of arms’ adapted to the digital environment. His speech served as a reminder that technology must remain a tool in the service of justice and not a substitute for procedural safeguards.
Balancing technological innovation with the protection of fundamental rights
Amedeo Barletta, Doctor of Law, criminal defence lawyer at Studio Legale Barletta (Italy), Vice-President of the European Criminal Bar Association and co-head of the Observatory on European Union Law at the Union of Italian Criminal Chambers, put the various presentations into perspective by emphasising the need to reconcile technological innovation with the effective protection of fundamental rights.
He emphasised that new technologies offer unprecedented investigative capabilities but require a robust legal framework to prevent any disproportionate infringement of individual freedoms. During the discussions, he highlighted issues relating to algorithmic transparency, judicial oversight and the balance of power between the prosecution and the defence.
He also emphasised that legal practitioners will now need to gain a better understanding of the technological mechanisms used in criminal proceedings. In conclusion, he reiterated that the common objective remains the search for solutions to improve the efficiency of the justice system whilst ensuring respect for the fundamental principles of a fair trial in an ever-changing digital environment.
This second session highlighted a reality that can no longer be ignored: artificial intelligence and digital tools are profoundly transforming criminal investigations, the ways in which evidence is gathered and, more broadly, the administration of criminal justice. The presentations showed that these innovations offer significant opportunities in terms of efficiency, data analysis and judicial cooperation, but that they simultaneously pose major challenges for the protection of fundamental rights.
A common concern emerged from the discussions: ensuring that technological development does not come at the expense of the principles of a fair trial. The transparency of algorithms, human oversight of AI-assisted decisions, the defence’s effective access to digital evidence, and the genuine ability to challenge the results produced by technological tools were identified as key issues.
The discussions also highlighted the need for all those involved in the judicial process to enhance their skills. Judges, lawyers, experts, and investigators must now be able to understand the technical mechanisms underpinning new forms of evidence to maintain the balance of power between the parties and ensure effective judicial review.
Finally, this session highlighted the importance of the recommendations drawn up as part of the Digital Rights project. These recommendations represent an initial concrete response to the challenges posed by the increasing digitalisation of criminal justice and reaffirm a fundamental principle: technology must remain at the service of justice, the rights of the defence and the rule of law, and must not replace them. Thus, the future of European criminal procedure will depend less on the performance of digital tools than on the ability of institutions to regulate their use whilst respecting procedural safeguards and fundamental freedoms.
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