Overview on the digitalisation of justice in the European Union
The current era is marked by the desire to improve the quality of justice with compliant digital tools. Indeed, the idea is to make these tools able to take into account the divergent interests of the parties which is not that easy.
At this point, EU is proactive on digital issues. For example, the European Commission is aware that the training of practitioners in this matter is crucial and therefore offers specific funding. These will have to be distributed in a balanced way to ensure the training of all stakeholders.
Finally, the evidence system is challenged and needs improvements on electronic evidence which differs by nature of physical proof.
This is the reason why the CCBE and the DBF have decided to help the European Commission to improve the regulation of these tools and to propose a concrete approach from lawyers on the way digital tools are used nowadays in the justice system.
Therefore, the CCBE thinks that i twill be accurate to create a specific expert group, to defend an equal distribution between the different legal professions and to support the development of e-evidence.
I. The creation of Expert Group composed by different justice practioners
The proposal of creation of a « High-Level Expert Group on the digitalisation of justice and the use of AI in justice with the full involvement of all justice practitioners ».
The CCBE works very often on this subject, but it will be important that a specific committee will constantly be in charge of this matter in the interest of all litigants.
II. Including all the legal professions in this project
Then, regarding the funding schemes made available by the Commission, it is indeed important to have an equal distribution between the different legal professions (no prioritisation). Thus the Commission is right to say that : « The objective to train practionners to fit in the digital age and be sufficiently informed on the latest EU judicial proceedings developments ».
Moreover, in order to achieve the digital information of practionners and organise EU funds access, the formation of « a dedicated European structure regarding training in EU law and exchange of lawyers that mirrors the European Judicial Training Network (EJTN) » appears completly appropriate.
III. Improvements of the e-evidence proposal
Finally, the proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (e-evidence) creates new points of discussion such as :
- At first, The European production order and the European preservation order considerably simplify the procedure for obtaining evidence.
- The fact that the European Production or Preservation Order could also be requested on behalf of a suspected or accused person would represents an important pillar of the right to a fair trial and the principle of equality of arms.
- Furthermore, concerning sensitive data, the European Production Order should not be used in order to ensure the professional secrecy of lawyers in particular.
- Then, we can question that « the executing authority must give its explicit approval before a production or preservation order can be executed ». This is an effective safeguard, but it should not undermine the principle of a reasonable time to administer justice.
- Finally, physical and digital evidence differ in nature. They must therefore and in some respects, have specific regimes and guarantees, such as the Comissioner said : « take into account that the applicable procedures should reflect these differences, while simultaneously ensuring safeguards, including the protection of privileges – such as the lawyer-client privilege ».
- The Commission proposal ensures that there is an easy access to electronic evidence and a mutual recognition.
There is always room for improvements, but the active work of the EU and the Member States shows a positive trend for the digitalisation of justice that takes into account the current challenges of our actual way of living and of considering justice.