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Criminal Justice, Fundamental Rights and the Rule of Law in the Digital Age

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Criminal Justice, Fundamental Rights and the Rule of Law in the Digital Age Criminal Justice, Fundamental Rights and the Rule of law in the Digital Age Report of CEPS and QMUL Task Force Rapporteurs Sergio Carrera Valsamis Mitsilegas Marco Stefan Criminal Justice, Fundamental Rights and the Rule of Law in the Digital Age Report of a CEPS and QMUL Task Force Sergio Carrera Valsamis Mitsilegas Marco Stefan Centre for European Policy Studies (CEPS) Brussels May 2021 The Centre for European Policy Studies (CEPS) is an independent policy research institute based in Brussels. Its mission is to produce sound analytical research leading to constructive solutions to the challenges facing Europe today. Sergio Carrera is Senior Research Fellow and Head of the Rights and Security Unit at CEPS, Part- Time Professor at the Migration Policy Centre (MPC), European University Institute (EUI) and Visiting Professor at the Paris School of International Affairs, Sciences Po. Valsamis Mitsilegas (Principal Investigator) is Professor of European Criminal Law and Global Security and Deputy Dean for Global Engagement (Europe) at Queen Mary University of London (QMUL). Marco Stefan is Research Fellow in the Justice and Home Affairs (JHA) Unit at CEPS. The authors would like to thank Miriam Mir, CEPS JHA Unit Coordinator, as well as Nina Prusac and Maria Barraco, Global Policy Institute (GPI) Graduate Associates, for their valuable assistance during the CEPS/QMUL – GPI HLEG meetings, as well as during the reporting process. ISBN 978-94-6138-784-4 © Copyright 2021, CEPS All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means – electronic, mechanical, photocopying, recording or otherwise – without the prior permission of the Centre for European Policy Studies. CEPS Place du Congrès 1, B-1000 Brussels Tel: 32 (0) 2 229.39.11 e-mail: [email protected] internet: www.ceps.eu Contents Preface ............................................................................................................................................. 1 List of abbreviations ........................................................................................................................ 2 Key findings and recommendations ............................................................................................... 4 Introduction ................................................................................................................................... 12 1. From disruption to digital rush: the impact of Covid-19 on the functioning of criminal justice systems ....................................................................................................................... 17 1.1 Impact on the functioning of national justice systems ................................................. 17 1.2 Increased use of technologies and data in criminal justice systems and proceedings18 1.3 Impact on EU judicial cooperation in criminal matters ................................................ 22 1.4 Latest EU initiatives for the digitalisation of criminal justice ....................................... 23 1.4.1 The 2020 Security Union Strategy .......................................................................... 24 1.4.2 Council conclusions on access to justice ................................................................ 27 1.4.3 Communication on digitalisation of justice in the EU ........................................... 28 1.5 Unpacking the EU digital justice concept and agenda .................................................. 31 2. The impact of technologies on the legality and accessibility of criminal justice systems .. 36 2.1 Remote justice through videoconferencing .................................................................. 37 2.1.1 Videoconferencing in police custody and in pre-trial detention .......................... 39 2.1.2 Videoconferencing in court hearings ..................................................................... 41 2.1.3 Videoconferencing in cross-border proceedings ................................................... 44 2.2 Digitalisation of registries and case files, and the development of new systems for the exchange of data in criminal proceedings ........................................................ 45 2.2.1 Digitalisation of case files, registries and case management systems ................. 46 2.2.2 Challenges related to the e-CODEX proposal ........................................................ 47 2.2.3 Interoperability of IT systems and the blurring of lines between justice and security ..................................................................................................................... 50 2.3 Deployment of AI in the criminal justice domain .......................................................... 53 2.3.1 The Council of Europe’s ethical principles relating to the use of AI by courts..... 54 2.3.2 Developments at EU level ....................................................................................... 54 2.3.3 Fundamental rights and rule of law challenges related to the use of AI in criminal justice ......................................................................................................... 57 2.3.4 Possible impacts of AI on access to justice and equality of arms ......................... 60 3. Conclusions: Technologies for fair, accessible and effective criminal justice in the digital era ................................................................................................................................ 62 3.1 Technologies, criminal justice and the need for Better Regulation standards ........... 62 3.2 Technologies and the blurring of lines between justice and security ......................... 64 3.3 Equality of arms challenges ............................................................................................ 65 3.4 Discrimination challenges............................................................................................... 66 3.5 Technologies and the human dimension of criminal justice ........................................ 67 Appendix ........................................................................................................................................ 68 PREFACE The Global Policy Institute (GPI) at Queen Mary University of London (QMUL) and the Centre for European Policy Studies (CEPS) jointly set up a High-Level Expert Group (HLEG) to examine key challenges and potential opportunities related to the use of various types of technologies in criminal justice systems and processes, as well as in the context of EU judicial cooperation in criminal matters. This report is based on discussions in the HLEG, which met twice between February and March 2021. Its contents reflect the general tone and direction of the HLEG discussions, but its findings do not necessarily represent a full common position among the members of the group, or the views of any individual participants (unless expressly mentioned). A full list of the HLEG members, meeting participants and invited speakers appear in the appendix. This project was funded through the Research England Quality-related Research Strategic Priorities Fund. It is the result of a collaboration between the GPI at QMUL, which acted as project lead, and CEPS, which acted as implementing partner. Professor Valsamis Mitsilegas (Principal Investigator) and Professor Sergio Carrera were responsible for the inception and scientific coordination of the project. Dr. Marco Stefan coordinated the project implementation, with the support of the CEPS JHA team and the GPI Graduate Associates. The views expressed in this report are those of the authors writing in a personal capacity and do not necessarily reflect those of CEPS, QMUL, GPI or any other institution to which the authors are associated. The report was finalised on 31 March 2021. Minor amendments were made in April 2021to update the text in light of new documents and developments. | 1 LIST OF ABBREVIATIONS Artificial Intelligence AI Better Regulation Guidelines BRG Case Management System CMS Centre for European Policy Studies CEPS Council of Bars and Law Societies of Europe CCBE Council of Europe CoE Court of Justice of the European Union CJEU e-Evidence Digital Exchange System eEDES Entry/Exit System EES EU Agency for Criminal Justice Cooperation Eurojust EU Agency for Fundamental Rights FRA EU Agency for the Operational Management of Large-Scale IT Systems in eu-LISA the Area of Freedom, Security and Justice European Arrest Warrant EAW European Commission for the Efficiency of Justice CEPEJ European Convention on Human Rights ECHR European Court of Human Rights ECtHR European Criminal Bar Association ECBA European Criminal Records Information System ECRIS European Criminal Records Information System for Third-Country Nationals ECRIS-TCN European Digital Rights EDRi European Investigation Order EIO European Judicial Network EJN European Parliament EP European Parliamentary Research Service EPRS European Public Prosecutor Office EPPO European Travel Information and Authorisation System ETIAS General Data Protection Regulation GDPR Global Policy Institute GPI High-Level Expert Group HLEG Information and Communication Technology ICT 2 | Impact Assessment IA Inter-American Commission on Human Rights IACHR International Covenant on Civil and Political Rights ICCPR Joint Investigation Team JIT Justice and Home Affairs JHA Mutual Legal Assistance MLA Queen Mary University of London QMUL Schengen Information System SIS Treaty on the Functioning
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