Why a Human Court?

• Date: 01 June 2023
• Year: 2023
• Author: dr hab. Marcin Górski
• Pages: 85
• DOI: https://doi.org/10.30709/eucrim-2023-008

I care very little if I am judged by you or by any human court; indeed, I do not even judge myself

(1 Corinthians 4:3)

I. Contemporary Understanding of the Right to a Fair Trial and the Potential Impact of Artificial Intelligence

The notion of the right to a fair trial has evolved over time. Taking Poland as an example, the beginnings of the right to a fair trial were rooted in the privileges of the gentry (or, oversimplified, the aristocracy). This dates back to the XV century and was first expressed in the statutory limitations of the royal power of expropriation and the rule of subjecting the gentry only to adjudication based on a written law (the so-called Czerwińsk Privilege of 1422), which was accompanied by the neminem captivabimus nisi iure victum principle. The right to a fair trial was strengthened by the first Constitution of 1791 and further developed during the Second Republic (1918-1939). Gradually abolished during the communist era (roughly 1944-1989), the right to a fair trial was revived as early as the late 1980s and “flourished” again with the rise of democracy after the collapse of the communist rule in 1989. Sadly, it took a great hit after 2015 under the present far-right government.¹

More generally, the more power is (at least allegedly) vested with the judiciary (both international and national), the more weight the right to a fair trial carries.² This ratio is like a litmus test of democracy where “fair-trial guarantees […] are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers.”³

Fundamental international documents devoted to human rights share a relatively common definition of the right to a fair trial: the Universal Declaration of Human Rights (UDHR) in Articles 8 and 10, the International Covenant on Civil and Political Rights (ICCPR) in Art. 14, the American Convention on Human Rights in Art. 8, (to a lesser extent) the African Charter of Human and Peoples’ Rights in Art. 7, the European Convention on Human Rights (ECHR) in Arts. 6 and 13, and the Charter of Fundamental Rights of the European Union (ChFR) in Art. 47 – all rather uniformly refer to nine elements of the right to a fair trial, i.e. fairness, public hearing, reasonable time, independence and impartiality of the trial court, lawfulness of judicial appointment, right of a party to be represented and to have legal aid free-of-charge, and (implicitly – e.g. in the ECHR, or explicitly – e.g. in the ChFR) the right to effectiveness of judicial protection. The national constitutions of the European states all refer to the safeguards of the right to a fair trial in much the same way.⁴

Perhaps one may even claim that the notion of a fair trial, as matters stand, amounts to a pre-existent⁵ (or extant) constitutional notion, i.e. a concept that does not require defining because everyone is already familiar with it. As for these nine criteria at the heart of a fair trial, it seems pretty clear that an AI-driven judiciary is likely to have a positive effect on the expeditiousness of proceedings whilst making no difference to the right to legal representation or legal aid, or to the right to a public hearing (i.e. access of the public to the hearing and to the pronouncement of judgments⁶). However, what remains unclear is whether the introduction of an AI-based judiciary might adversely affect the (“sub”) rights to independence and impartiality (and lawful establishment) of the trial court or to fairness of proceedings. This will be discussed further in the next sections.

1. Independence, impartiality, and lawfulness of establishment of the trial court

Legal scholars have raised certain objections against the use of AI in the courtroom concerning judicial independence⁷. For example, Nowotko held that “the court which issues judgments by means of an IT system based on artificial intelligence cannot be independent in the meaning of independence in adjudication”⁸, and Gentile suggested that

“any influence exercised by a state’s executive or the legislative, for instance, over data centres used to digitise judicial decisions, the selection of the training data for neural systems, or the very design of the algorithm used in the courtroom would be liable to raise doubts about the court’s independence”.⁹

These concerns are apparently shared by the European Commission, which proposed a draft Regulation laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) in 2021.¹⁰ The proposal classifies “AI systems intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts” as “high-risk AI systems” and (in Article 14) aims at subjecting them to human supervision “during the period in which the AI system is in use” in order to protect fundamental rights. This approach is based on the noticeable belief in the quality of the human judiciary and – more broadly – on the anthropocentric orientation of contemporary constitutionalism¹¹ and, gradually, international law as well¹².

The idea behind these concerns seems to be that if an algorithm delivers a judgment (or participates therein in the decision making by providing decisive data), it is not “independent” from the humans who developed the algorithm, nor from the data contained and managed by an automated system. The judgment, instead of being the sole consequence of individual judicial appraisal, is predetermined by the human programmer and the dataset provided by him or her.

However, judicial independence means that the decision-making process is not interfered with and not that it is unrelated to data on which it is based. A human judge is (even more so than algorithms, perhaps) “programmed” by his/her knowledge of law, available information (in practice, this nowadays amounts to electronic databases of the case-law and scholarly works), cultural and social background, individual prejudices etc. Independence entails personal and institutional qualities required for impartial decision-making, and it is thus a prerequisite for impartiality.¹³ It characterises both a state of mind which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and a set of institutional and operational arrangements which must provide safeguards against undue influence and/or unfettered discretion of the other State powers.¹⁴. This makes independence a characteristic of a tribunal’s relations vis-à-vis the other branches of government¹⁵ and the parties to the proceedings¹⁶. What matters is that there must be no external, undue influence from the outside on how justice is administered in a particular case. Even the political nature (or “flavour”) of the judicial appointment process as such does not necessarily mean that the requirement of independence is always impaired¹⁷ – provided that sufficient safeguards exist protecting the sterile judicial decision-making mechanism. Taking into account the concerns regarding the independence of AI judges from the possible undue influence of other branches of government¹⁸, one cannot but note that from a normative perspective they are no different from those concerning any other undue influence on judicial decision-making. The difference lies in the technological implementation of such influence, but not in the influence itself.

Obviously, specific technical safeguards are required to protect the algorithm from external influence while deciding cases. Yet, theoretically, achieving the required standard of independence is not excluded when algorithms are used for adjudicating purposes. The same conclusion applies to the requirement concerning the way in which a court is established. As the CJEU rightly held in A.K. v. Krajowa Rada Sądownictwa:

“although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction. The question is always whether, in a given case, the requirements of the ECHR have been met”.¹⁹

It follows that while there may be different methods of appointing judges, they can entail different degrees of political involvement. Ultimately, however, it comes down to an overall assessment of whether the judicial branch is sufficiently protected from the undue political influence by government, as is also the case for the independence requirement.

Therefore, while relying on AI as a judge clearly raises serious concerns pertaining to the requirement of independence, it appears that these concerns are no more pertinent than in the case of human judges. In a way the opposite might be true – AI promises more transparency in the sense that anyone (obviously provided they have enough technical expertise) can actually check the dataset on which AI judgments are based, whereas no one can consult the mind of a human judge.

2. Fairness

If sufficient technological safeguards exist – which by nature is more a technical than a legal question – that protect the independence of AI judiciary (understood as immunity from undue influence from other branches of government), the question nevertheless remains whether an AI judge is able to ensure fairness as a precondition of the right to a fair trial.

The right to a fair trial does not necessarily need to encompass a right to substantive fairness (a “proper” judgment). In some jurisdictions, it extends to a substantive fairness guarantee²⁰, in others it does not²¹. In the European constitutional space, the notion of a “fair trial” is limited to the question of procedural fairness, i.e. whether the rule...