The CCBE is monitoring initiatives to support the digitalisation of judicial procedures, to foster interoperability of different national systems, and to support the uptake of new technologies in the day-to-day functioning of justice systems. The CCBE considers that such initiatives must be coupled with sufficient safeguards and due process procedures to uphold fair trial rights, in particular the rights of the defence, such as the protection legal professional privilege.
The CCBE estimates that endeavours on e-justice must respect and ensure fundamental rights and principles. e-justice systems need to be secure and support an “electronic equality of arms” and ‘’access to justice’’. Also, they should ensure that all parties enjoy at least the full procedural rights that they previously had under paper-based systems. Moreover, e-justice systems need to consider lawyers’ deontological and statutory duties which serve the interests of their clients and the rule of law in general.
For these reasons, the CCBE has contributed to various initiatives at the European level and managed different projects on its own concerning the digitalisation of Justice:
Within the Council of Europe, the CCBE is representing lawyers by participating as an observer in the work of the Working Group on Cyberjustice and Artificial Intelligence of the European Commission for the efficiency of justice (CEPEJ) and the Ad hoc Committee on Artificial Intelligence (CAHAI). Furthermore, in the context of the Covid19 crisis, the CCBE has monitored the impact of the pandemic on the way lawyers and courts work and prepared Guidance on the use of remote working tools by lawyers and remote court proceedings (27/11/2020).
Within the general framework of the digitalisation of justice, the CCBE adopted several position papers and recommendations in response to EU legislative and non-legislative proposals. In March 2021, the CCBE commented a communication of the European Commission on the digitalisation of justice in the EU. In its paper, the CCBE points out the necessity to have wide minimum standards to ensure that national e-justice systems are able to guarantee a fair trial. Regarding the use of Artificial intelligence in justice systems, the CCBE stresses the need to uphold minimum safeguards and principles to counter the potential risks and biases. It also calls to develop mandatory minimum standards as to the technical arrangements that should be in place for the use of videoconferencing, with a specific focus on the protection of legal professional privilege during videoconferencing sessions.
Furthermore, since 2010 the CCBE has been structurally involved in the development of e-justice through its role in the consortium managing the e-CODEX project, with several European countries and other organisations. e-CODEX is unique in the sense that it offers a European digital infrastructure for secure cross-border communications in the field of justice. Although at this moment e-CODEX only supports a limited number of use-cases in civil and criminal proceedings, it is intended to become a general platform providing access to cross-border justice for all European citizens, businesses and legal professionals. In March 2021, the CCBE contributed to a proposal which aims to establish the e-CODEX system on a permanent basis.
- CCBE Position paper on the proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system) and amending Regulation (EU) 2018/1726 (the “e-CODEX proposal”) (26/03/2021)
With regard to the use of Artificial intelligence in particular, the CCBE prepared its own contribution in February 2020: the CCBE Considerations on the Legal Aspects of Artificial Intelligence (20/02/2020). With this paper, the CCBE analyses various legal aspects arising out of the use of AI in several areas which concern the legal profession. The paper focuses on AI and human rights; the use of AI by courts; the use of AI in criminal justice systems; liability issues and the impact of AI on legal practice.
Furthermore, the CCBE monitors and will contribute to the development of the new EU AI framework presented in April 2021, for which a contribution was already made in the CCBE Response to the consultation on the European Commission’s White Paper on Artificial Intelligence (05/06/2020).
The CCBE is also managing the project called AI4Lawyers in cooperation with the European Lawyers Foundation (ELF). The phase 1 of the project was completed in February 2021 with the presentation of an Overview on the “average state of the art” IT capabilities of lawyers and law firms in the European Union and gap analysis with comparisons to US/UK/Canada best practices. In its current phase 2, the project is assessing the opportunities and barriers in the use of natural language processing tools in small and medium sized law practices. It will end with the adoption of a guide on the use of AI by European lawyers and law firms.
Finally, the CCBE is committed to ensuring the safeguarding of fundamental rights, the right to a fair trial and the rights of the defence in the context of the development of international instruments on e-evidence. For instance, at the EU level, the CCBE has engaged, in cooperation with other civil society organisations, in a discussion with the European institutions which are negotiating the content of a legislative proposal on e-evidence. Within the Council of Europe, the CCBE also participated in stakeholders consultations in the context of the drafting of a new protocol on electronic evidence to the Budapest Convention on Cybercrime.
- Joint letter on e-evidence (18/05/2021)
- Open letter on CCBE contribution to the trilogue on the e evidence proposal (30/03/2021)
The Council of Bars and Law Societies of Europe (CCBE), represents the bars and law societies of 45 countries, and through them more than 1 million European lawyers.