Strasbourg, 28 November 2019
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ)
WORKING GROUP ON THE QUALITY OF JUSTICE (CEPEJ-GT-QUAL)
26th meeting (Venice, 30-31 October 2019)
Report prepared by the Secretariat
Directorate General I - Human Rights and the Rule of Law
1. OPENING OF THE MEETING AND ADOPTION OF THE AGENDA
1. The Working Group on the Quality of Justice (CEPEJ-GT-QUAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 26th meeting at the Council of Europe Office in Venice on 30 and 31 October 2019. The meeting was chaired by João Arsenio DE OLIVEIRA (Portugal).
2. The agenda and list of participants are attached as Annexes I and II respectively to this report.
2. INFORMATION BY THE PRESIDENT, MEMBERS AND THE SECRETARIAT
4. In addition, the Secretariat informs that, during the presentation by the President of the CEPEJ of the latter's activities to the Committee of Ministers on 9 October 2019, questions were raised by many delegations on the implementation of the principles of the Charter, and in particular the possible creation of a mechanism for certification by the CEPEJ of AI applications, which shows a great interest shown by some States in this issue.
3. Analysis of the action taken since the last meeting to ensure the implementation of the Charter on the basis of the priorities previously defined by the Group[CEPEJ document (2019) 1]
a) Develop the principles of the Charter and provide further methodological and operational guidance on how the principles should be applied: consideration by the Working Party of the first draft operational standards and proposals for their improvement
5. The Secretariat presents the operational standards concerning the applications of so-called "predictive justice" and legal research [CEPEJ-GT-QUAL (2019) 4] which have been prepared by the IEEE (Institute of Electrical and Electronic Engineers) and which have been reviewed and commented on by CEPEJ scientific experts [CEPEJ-GT-QUAL (2019)10], including at a meeting held in Athens on 23 September 2019, which was chaired by Merethe ECKHARDT, in the absence of the President of the CEPEJ-GT-QUAL. These are some of the most widespread applications at European level according to the study on the use of AI in European judicial systems annexed to the Charter.
6. The deliverables identified, for these target applications, on the one hand the specific questions to be answered in order to assess whether or not the application is in conformity with the CEPEJ principles, and on the other hand the specific empirical evidence that would allow answers to be found to these questions. The operational standards will be reviewed on the basis of the comments of the CEPEJ experts, and discussed during a meeting to be held in early 2020. Once completed, these deliverables would provide decision-makers and private actors such as legaltechs with basic elements that could lead to practically achievable certifications.
7. The members of the CEPEJ-GT-QUAL express their appreciation of the work that has been carried out so far. Ms. ECKHARDT stressed the need for a different methodological approach to the operationalization of the principles of the Charter: it was now necessary to act on the basis of a multidisciplinary approach, bringing together lawyers and specialists in computer science, and resulting in documents that were different from traditional legal ones. Mr. Gilles ACCOMANDO suggested testing the operational standards on practical applications before their dissemination.
8. At the end of the discussion, the CEPEJ-GT-QUAL welcomes the work carried out so far, expresses itself in favour of continuing the collaboration with IEEE, instructs the Secretariat to forward its comments to the experts and to confirm the January 2020 meeting. He expressed the wish that this work could be presented at the 33rd plenary meeting of the CEPEJ in Strasbourg.
B) Possible establishment of a certification mechanism for AI solutions: analysis by the Working Group of the draft terms of reference for a preliminary feasibility study
- The Working Group examines the document CEPEJ-GT-QUAL (2019)8 which aims at the possible establishment of a mechanism for the certification of AI solutions by the CEPEJ. The function of such a mechanism would be to assess the extent to which AI solutions comply with the CEPEJ Charter and the operational standards described above. To this end, it agreed to carry out a feasibility study on the possible establishment of such a mechanism. A consultant with specific tasks described in the document and a specific profile should be hired.
- The members of the CEPEJ-GT-QUAL propose amendments to the draft terms of reference, of which the Secretariat takes note.
11. At the end of the discussion, the CEPEJ-GT-QUAL instructs the Secretariat to integrate the amendments and to present this document for adoption by the CEPEJ at its 33rd plenary meeting.
C) Presentation by a representative of the Higher Council of the Judiciary of the Netherlands on recent initiatives concerning the use of AI in the Dutch judicial system
- Mr Bart SCHELLEKENS, representative of the Higher Council of the Judiciary (HCM) of the Netherlands, presented the newly adopted Strategy on Judicial and Legal Data adopted by the HCM, which had been the subject of intense debate among Dutch legal professionals. This Strategy also concerns AI applications that can be used within the judicial system: it has laid down principles applicable to these applications, which have also been inspired by the CEPEJ Charter. In this respect, Mr SCHELLEKENS informs the CEPEJ-GT-QUAL of the need for methodological advice on the modalities of concrete applications of these principles and welcomes the work currently carried out by the Group in this respect.
- A debate ensued on the use of judicial and legal data and the differences in approach among different countries to the use of AI, in particular as an instrument for checking the consistency of case law on certain matters.
- At the end of the discussion, the Group thanked Mr SCHELLEKENS for the quality of this exchange and noted the developments that had taken place in the Netherlands.
D) Information by the Secretariat on the actions undertaken, in particular as regards the translation of the Charter into different languages, participation in different fora to present the Charter and the possible creation of a pool of experts to respond to the numerous requests for presentation concerning the European Ethical Charter.
14. The Secretariat recalls that translations of the Charter are available in Russian, Greek, Portuguese, Dutch, Italian and Chinese. The Charter has been presented in many forums either by the Secretariat or by the members of the CEPEJ-GT-QUAL. There are many requests for the Charter to be presented and consideration should be given to setting up a mechanism to be able to respond to them.
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The President suggested the following procedure when receiving a request:
- First, check the availability of the Secretariat;
- If not, send the request to the members of the CEPEJ-GT-QUAL who will indicate their availability;
- Failing this, hire a scientific expert: in this respect, a list will be prepared by the Secretariat, which will include experts who have contributed to the work of preparing the Charter and experts who have already made presentations of the Charter in the past. The members of the CEPEJ-GT-QUAL are invited to indicate other experts at the time of circulation of this list will be circulated.
16. At the end of the discussion, the CEPEJ-GT-QUAL agrees to follow the method described above when receiving a request for the presentation of the Charter, and instructs the Secretariat to prepare a list of experts which will be distributed electronically among the members for integration of other expert profiles.
4. Sharing knowledge as an INSTRUMENT to break the isolation of judges and improve their skills AND KNOW-HOW
17. At the end of its previous meeting, the Working Group had instructed the Secretariat to revise the guidelines on knowledge sharing among judges, taking into account its comments and proposals. This is presented by the President and then the members agree that it can be presented to the 33rd plenary meeting of the CEPEJ for adoption. It is nevertheless proposed to shorten the title and make it more direct and understandable to the reader: "Taking the judge out of his isolation".
18. The Secretariat informs the participants that Slovenia has won the 2019 edition of the CEPEJ Crystal Balance, on the basis of a project based inter alia on good knowledge sharing practices within the judiciary. It agreed to mention this initiative in the text, on the basis of a short contribution to be sent by Mitjia KOZAR (Deputy Member, Slovenia).
19. The Group approved the text and instructed the Secretariat to include elements to be submitted by Mitjia KOZAR. The document should be presented to the CEPEJ at its 33rd plenary meeting for adoption.
5. PRESENTATION OF FACT SHEETS ON NEW TOPICS BY THE GROUP
20. At its 25th meeting, the Group had identified four topics for further development in 2020 - 2021:
(a) The quality requirements to be met in videoconferencing, bearing in mind that existing documents on the subject should not be duplicated; (responsible: Harold EPINEUSE)
(b) Ensure diversity in the recruitment and promotion of judges, focusing on the issue of the "glass ceiling" faced by women judges, and on existing good practices at the European level to break this ceiling; (responsible: the President and the Secretariat)
c) The centrality of the user in judicial proceedings, particularly in civil matters: how to preserve such centrality from the beginning of the proceedings and at the time of the hearing, while striking a balance between the requirements of quality and those of efficiency of justice? (responsible: the President and the Secretariat)
(d) The need to communicate clearly and simply with the litigant, particularly in the drafting and communication of judicial decisions, but also beforehand when drafting legislative instruments (responsible: Merethe ECKHARDT (Member, Denmark), and Gilles ACCOMANDO)
21. The Group reviewed the thematic sheets that had been prepared for the meeting, with the exception of the one on videoconferencing, due to the absence of Harold EPINEUSE.
22. With regard to the fact sheet on diversity in the recruitment and promotion of judges, the members of the CEPEJ-GT-QUAL agree that the fact sheet should, on the one hand, focus on the promotion of gender equality within the judiciary, and on the other hand, develop the policies and measures put in place in the Member States to promote gender equality in recruitment. Moreover, with regard to women's access to decision-making positions, it would be interesting to analyse the sociological, economic or cultural reasons that hinder women's access to these positions (for example, the phenomenon of self-censorship).
23. Regarding the continuation of the work, the Group agrees that it would be appropriate to draft a study and a compendium of good practices to achieve true gender equality in the recruitment and promotion of judges. The scientific expert to be engaged for this task should preferably bring together legal and sociological expertise. The Group instructed the Secretariat to incorporate these changes into the form and to organize an electronic consultation on the new version (with the application of a silent approval procedure).
24. The fact sheet on the centrality of the user in legal proceedings is presented by Mr Valentin RETORNAZ, scientific expert (Switzerland). The sheet proposes to focus on the following themes: adapting the formalism of the procedure; encouraging interaction between courts and plaintiffs; and promoting access to the law. The expert proposes to develop a comparative study on these issues.
25. The CEPEJ-GT-QUAL thanks Mr. RETORNAZ for his presentation. The Group decides that the first two questions should be dealt with as indicated in the fact sheet, but that the issue of access to law should be dealt with differently. In particular, access to the law must be supplemented with elements relating to access to the procedure. In this respect, it is essential to take into account the impact that digital technologies can have on the exercise of these rights: the question of the "digital divide" and the good practices to be put in place to prevent it from occurring should be addressed by the expert.
26. The Secretariat recalls that the Guidelines on the conduct of change towards cyberjustice adopted by the CEPEJ in 2016 represent an instrument that should be taken into account when addressing these issues.
27. At the end of the discussion, the Group instructs Mr RETORNAZ to integrate the proposals made during the meeting into the sheet. He also pointed out that the expected deliverable is a guide to good practice and guidelines for policy-makers, not just a comparative study. The new version will be presented to the members of the CEPEJ-GT-QUAL within the framework of an electronic consultation to be organised by the Secretariat (with the application of a silent approval procedure).
28. With regard to the fact sheet on communication with the litigant, the Group considers that the work should not focus on the clarity of legislation, but rather on the clarity of court decisions and on any communication between the courts and litigants. It is essential to study existing good practices in this respect in the Member States in order to derive guidelines.
29. At the end of the discussion, the Group instructed the Secretariat to incorporate these changes into the form and to organise an electronic consultation on the new version (with the application of a silent approval procedure).
30. In summary, all the sheets are provisionally approved by the Working Group and will be subject to electronic consultation following the amendments suggested at the meeting, with the application of a silent approval procedure.
- Appointment of a CEPEJ representative to the new Ad Hoc Committee on Artificial Intelligence (CAHAI)
31. The Secretariat informed the Group of the establishment of the new Ad Hoc Committee on Artificial Intelligence (CAHAI). He insists on the importance of the participation of a member of the CEPEJ-GT-QUAL in the meetings of the CAHAI, to inform him of the work of the CEPEJ and to follow its work.
32. The Group appoints Mrs Merethe ECKHARDT and, if this is not possible, Mrs Mitja KOZAR, to represent the CEPEJ before the CAHAI.
APPENDIX I / ANNEXE I
Agenda
- Adoption of the agenda / Adoption de l'ordre du jour
- Information by the Chairman, the experts and the Secretariat /
Information to the President, experts and the Secretariat
- Review of the action undertaken since the last meeting as regards implementing the European Ethical Charther on the use of artificial intelligence in judicial systems and their environment, particularly according to the priorities previously defined by the Group/ Analyse de l'action menée depuis la dernière réunion pour assurer la mise en œuvre de la Charte éthique européenne sur l'utilisation de l'intelligence artificielle dans les systèmes judiciaires et leur environnement sur la base des priorités précédemment définies par le Groupe
Priority number 1 : action n°3, in its different components a, b, and c/ Priority number 1 : action n°3, in its different components a, b, and c :
a. Expounding the Charter's principles and providing further methodological and operational guidance on the way such principles should be applied: review by the Working Group of the first draft operational standards and the proposals for their further improvement / Élaborer les principes de la Charte et fournir de nouvelles orientations méthodologiques et opérationnelles sur la manière dont ces principes devraient être appliquées: examen par le Groupe de travail des premiers projets de normes opérationnelles et des propositions pour leur amélioration
b. Possible establishment of a mechanism to certify AI solutions: review by the Working Group of the draft terms of reference of a preliminary feasibility study
c. Application of the Charter by the courts and legal professionals: presentation by a representative from the High Council of the Judiciary of the Netherlands on recent initiatives concerning the use of the AI in the Dutch judicial system / Exposé d'un représentant du Conseil supérieur de la magistrature des Pays-Bas sur les initiatives récentes concernant l'utilisation de l'AI dans le système judiciaire néerlandais.
Priority 2 (action 1) and 3 (action 2)
Information by the Secretariat about the actions undertaken, namely as regards translation of the Charter into different languages, participation in different fora to present the Charter, and possible creation of a pool of experts to meet the numerous requests for presentation regarding the European Ethical Charter /Information par le Secrétariat sur les actions entreprises, notamment en ce qui concerne la traduction de la Charte dans différentes langues, la participation à différents forums pour présenter la Charte et la création éventuelle d'un pool d'experts pour répondre aux nombreuses demandes de présentation concernant la Charte éthique européenne.
- Knowledge-sharing as a tool for breaking judges' isolation and improve their expertise and skills / Le partage des connaissances en tant que instrument pour rompre l'isolement des juges et améliorer leur savoir-faire et leur savoir-être
· Review and discussion, with a view to their adoption, of the draft gudelines on knowledge-sharing/ Examen et discussion, pour leur adoption, du projet de lignes directrices sur le partage des connaissances et l'échange de connaissances.
- Presentation of thematic outlines on new working subjects for the Group / Présentation de fiches thématiques relatives aux nouveaux sujets de travail pour le Groupe :
Ensure diversity in the recruitment and promotion of judges / Assurer la diversité lors du recrutement et de la promotion des magistrats ;
The centrality of the user in legal proceedings, particularly in civil matters /La centralité de l'usager dans les procédures judiciaires, notamment en matière civile ;
Communicate clearly and simply with the litigant, particularly in the drafting and communication phase of judicial decisions, but also beforehand when drafting legislative instruments / Communiquer de manière claire et simple avec le justiciable, notamment dans la phase de rédaction et de communication des décisions judiciaires, mais aussi en amont lors de l'élaboration d'instruments législatifs.
- Appointment of a representative of the CEPEJ to the newly established Ad-Hoc Committee on Artificial Intelligence (CAHAI); Appointment of a representative of the CEPEJ to the new Ad Hoc Committee on Artificial Intelligence (CAHAI)
- Other business / Divers
APPENDIX II / ANNEXE II
List of participants / Liste des participants
MEMBERS / MEMBRES
Gilles ACCOMANDO, First President of the Court of Appeal of Pau, FRANCE
Joao ARSENIO DE OLIVEIRA, Head of Department, International Affairs Department, Directorate General for Justice Policy, Ministry of Justice, PORTUGAL (Chair of the GT-QUAL / Président du GT-QUAL)
Nino BAKAKURI, Judge, Supreme Court of Georgia, GEORGIA
Merethe ECKHARD, Director of Development, The Danish Court Administration, Centre for Law, Training and Communication, DENMARK
Anke EILERS, Presiding Judge of the Court of Appeal, Koln, GERMANY, Apologised / Excusé
Ramin GURBANOV, Senior official and judge, Ministry of Justice, AZERBAIJAN, (President of the CEPEJ /Président de la CEPEJ): Apologised / Apologised
Ioannis SYMEONIDIS, Judge, Court of Appeal, Professor at the Law School, University of Thessaloniki, GREECE, Apologised / Excusé
Mitjia KOZAR,Judicial councilor, District Court of Maribor, Sodna ulica 14, 2503 Maribor, SLOVENIA,
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SCIENTIFIC EXPERTS / EXPERTS SCIENTIFIQUES
Harold EPINEUSE, Chargé de mission at the Institut des Hautes Etudes sur la justice, 8 rue chanoinesse
Valentin RETORNAZ, Judge at the District Court of Hérens and Conthey, SWITZERLAND
Gregor STROJIN, State Secretary, Ministry of Justice, Župančičeva 3, Ljubljana, SLOVENIA
Bart SCHELLEKENS, L.M, Senior adviser/researcher Law & IT, Council for the Judiciary, THE NETHERLANDS
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OBSERVERS / OBSERVATEURS
EUROPEAN EXPERTISE AND EUROPEAN INSTITUTE (EEEI) / INSTITUT EUROPEEN DE L'EXPERTISE ET DE L'EXPERT (EEEI)
Raymond LEMAIRE, President, European Institute of Expertise and Expert, 38 rue de Villiers, 92300 Levallois,
COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN UNION / CONSEIL DES BARREAUX EUROPÉENS(CCBE)
Simone CUOMO, CCBE Senior Legal Advisor,
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SECRETARIAT
DGI - Human Rights and Rule of Law, Division for the independence and efficiency of justice /
DGI - Human Rights and Rule of Law, Division for the Independence and Efficiency of Justice
E-mail: [email protected]
Hanne JUNCHER, Head of Justice and Legal Co-operation Department / Chef du service de la coopération judiciaire et juridique, Tel: +33 3 88 41 24 24 37, e-mail: [email protected]
Clementina BARBARO, Secretary of / Secrétaire du CEPEJ-GT-QUAL Tél: +33 3 90 21 55 04, e-mail: [email protected]
Ioana VOELKEL, Assistant, Tel: +33 (0)3 88 41 41 24 94, e-mail: [email protected]