“As Judges we are all under a certain amount of pressure to perform more efficiently, to deliver justice more speedily. Artificial Intelligence offers certain opportunities in terms of case-processing. Yet the risks to human rights need to be clearly understood and managed” – Robert Spano, Former President of the European Court of Human Rights.
The European Court of Human Rights (the Court) is the world’s most efficient international court in terms of decision-output per judge. However, it still struggles against a massive backlog of cases. It therefore seems inevitable that the Court will soon implement Artificial Intelligence (AI) in its practice. ‘AI is already with us’ explains Marija Pejcinovic Buric, ‘and its challenges are unavoidable not only for individuals, but also for international organisations, especially the ones dealing with human rights’.
If used effectively, employing AI in the legal decision-making process has the potential to provide solutions to the myriad of issues obstructing the delivery of justice. This is especially the case at the Court, which has a staggeringly high number of pending cases (72,000 by the end of 2022). It must be assessed, however, whether the benefits of applying AI in this scenario outweigh its risks. Advancements in the application of AI technologies are increasingly influencing the way jurisdictions render decisions; for example, predictive analytics powered by AI can aid decision-making. Natural language processing algorithms also enable quick analysis of vast legal texts and court decisions.
The most obvious advantage of employing AI technology is the efficient utilisation of time: the Court may adopt the use of advanced technology solutions to engage with infinite data volumes. However, understanding how an algorithm makes its decisions is critical in determining whether it is affected by bias or other factors. This is highlighted by the European Commission’s 2021 proposal for EU regulation of AI, which categorised its use in judicial settings as high risk. Indeed, certain algorithms act as a ‘black box’, where it is impossible to determine how the output was produced, while the details of other algorithms are considered secrets by the trade company who develop and market AI systems. Additionally, algorithms should be regularly tested to ensure that they are still working appropriately. Use of these technologies should therefore be undertaken cautiously. Considering these developments, should we fear that litigants may find themselves in situations in which neither the applicant nor the lawyer can explain why certain determinations are made?
Public information on the Court’s plans to incorporate AI in its decision-making remains limited. There have been no press releases regarding changes to the procedure in favour of automation. Only the former President Spano explained that the Court was working on incorporating complex computing into its case processing, to assist with the high number of pending cases.. The Court might expect to see the incorporation of algorithmic tools in the office of the Jurisconsult (Research unit) which advises the judges on which previous case law might be relevant to a judgment and, in the Registry, where this could ease lawyers’ workload by allowing automatic record of file data.
However, individual applicants seeking to submit their cases risk being further deprived of their right to an individual trial of law. It risks making the decision-making process opaquer than it already is since the reasoning provided in the inadmissible decisions is already very abridged. Due to their lack of publication, it is impossible to consult them. The Court could minimise theses impacts not only by assuring the process of decision-making is transparent but also by assuring that the final decision is coherent. That is why it is critical to ensure transparency about the data that informs the algorithm.
AI could change the way in which cases are processed, but the chances of the complete replacement of human judges seem minimal, at this stage. The Court can therefore take advantage of the speed and accuracy of automated systems, whilst maintaining the human judge as the ultimate arbiter. For now, the Court is continuing its work to determine how AI could assist it in the future.
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