4 December 2018

The CEPEJ European Ethical Charter on the use of artificial intelligence (AI) in judicial systems and their environment

Presentation note

The “European Ethical Charter on the use of artificial intelligence in judicial systems and their environment” is the first European instrument to set out five substantial and methodological principles that apply to the automated processing of judicial decisions and data, based on AI techniques. Developed by the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ), it is aimed at private companies (start-ups active on the market of new technologies applied to legal services - legaltechs), public actors in charge of designing and deploying AI tools and services in this field, public decision-makers in charge of the legislative or regulatory framework, and the development, audit or use of such tools and services, as well as legal professionals.

At the outset, the CEPEJ points out that the use of AI tools and services in judicial systems is intended to improve the efficiency and quality of justice and deserves to be encouraged. However, it must be done in a responsible manner, respecting the fundamental rights of individuals as set out in the European Convention on Human Rights (ECHR) and Council of Europe Convention No 108 on the Protection of Personal Data, as well as the other fundamental principles set out in the Charter.

Among these principles, respect for human rights and non-discrimination is of fundamental importance. The objective is to ensure, from the conception to the 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 taken into account. A principle of quality and security is clearly stated: it should be possible to process data by automatic learning on the basis of 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. A certification system, to be renewed regularly, is also encouraged.

In addition, the need to make the user an enlightened agent and to feel in charge of their choices is stressed. 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, taking into account 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 various possible options and his or her right to legal advice and recourse before a court.

The CEPEJ hopes that these principles will become a concrete reference point for justice professionals, institutions and for political actors who are faced with the challenge of integrating new AI-based technologies into public policies or into their daily work. In addition, in practical terms, these principles provide an important basis for comparison in assessing the characteristics of the different applications of AI the integration of which into the judicial system or at the court level is now being pursued exponentially.

The CEPEJ is at the disposal of the member States, of judicial institutions and representatives of the legal professions to assist them in the implementation of the principles of the Charter.