New Technologies — New Justice – a joint project of the Helsinki Foundation for Human Rights and Clifford Chance Helsinki Foundation For Human Rights

An international group of scientists and senior representatives of public bodies, NGOs and practitioners will discuss perspectives on the digitization of the justice system in various European jurisdictions.

The panels will discuss themes covered in a recent joint report by the Helsinki Foundation for Human Rights and Clifford Chance, entitled New Technologies – New Justice – New Questions, and address areas of courts’ activities in which the impact of new technologies is most visible and where implementation of innovative solutions is needed.

The conference will be held online on Thursday 3 March 2022 at 10 AM CET.

According to over 93% of the lawyers participating in a survey of the Helsinki Foundation for Human Rights, the Polish justice system does not make adequate use of new technology solutions, shows a report prepared by the HFHR in cooperation with Clifford Chance. At the same time, the vast majority of the respondents (96%), claim that the introduction of modern technology solutions could improve the functioning of the courts.

The survey revealed that the potential of innovative and digital solutions could lead, in particular, to speeding up proceedings, rationalising the use of time by adjudicating panels and courts’ clerical staff, simplifying the handling of cases, saving costs and streamlining judicial correspondence. Referring to the risks associated with the wider use of new technologies in justice, respondents primarily mentioned the insufficient security of IT systems, reduced accessibility of courts and problems associated with the effective participation in proceedings caused by the phenomenon of digital exclusion.

New technologies, old problems

The report, developed by the Helsinki Foundation for Human Rights as part of a project carried out with Clifford Chance focuses on the functioning of new technologies in the justice system. For legal practitioners, the choice of topic is quite obvious: our daily observations of justice systems in Poland (and other jurisdictions) have not only revealed significant problems in the way these systems work but also highlighted considerable delays in the adoption of new technologies by the courts. We then asked ourselves whether some of the limitations and shortcomings of the justice system might be reduced through the wider use of what is broadly understood as “new technologies”.

Are new technologies really new?

We looked for answers to this question in Poland and abroad because a technology considered “new” in one country may as well be already well-recognised and widely used by international courts or courts operating in other domestic jurisdictions. The report covers the legal systems of England and Wales, Czechia, Spain, Japan, the United States, Italy and the Netherlands. The information received from offices of Clifford Chance operating in these countries served as the starting point for comparative analysis.

The process of digitisation of the judiciary is relatively underdeveloped in most of the surveyed jurisdictions, although the Covid-19 pandemic forced the introduction of new technologies in justice on a wider scale, and especially remote hearings and trials. In the vast majority of the surveyed jurisdictions, it is possible to conduct e-trials through video conferencing.  However, none of the surveyed jurisdictions operates fully-fledged “online courts” defined in the HFHR report.

The use of tools based on artificial intelligence is less widespread. As the survey shows, AI solutions appear in the judicial practice of most of the surveyed countries, are still usually at the stage of testing and pilot programmes – an example being a programme implemented in the Oost-Brabant regional court designed to help Dutch judges in deciding cases involving road traffic offences or the systems used to assess the risk of an offence being committed tested by law enforcement authorities, e.g., in Spain or England and Wales.

Between novelty and tradition – the role of international standards in assessing judicial reforms

By eliminating some existing practical barriers, the increasingly widespread use of modern technologies may have a positive impact on access to a court. On the other hand, the process may also entail risks that ultimately limit, rather than expand, individuals’ access to courts. This is particularly important in the case of persons who are “digitally excluded” due to, e.g., economic reasons or a lack of sufficient computer skills. As shown by the case law of the ECtHR, a cautious approach should be taken, for example, to the holding of remote criminal trials or hearings dedicated to decisions concerning different forms of deprivation of liberty which may be ordered in the context of other types of proceedings. Wider digitisation could be allowed in minor civil or administrative cases.

The inevitability of the new

In today’s report New Technologies – New Justice – New Questions. Implementation of New Technologies in Justice, we argue that digital innovations should not be shunned upon. The findings of the report also allow us to conclude that the introduction of technological advances in the courts is possible without jeopardising the essence of justice – fairness and equity.

However, let us not forget that new technologies should be applied with the full awareness of their advantages and disadvantages and that the latter should be corrected flexibly.

The report was prepared as part of New Technologies – New Justice a joint project of the Helsinki Foundation for Human Rights and Clifford Chance. 

E-trial – a temporary measure or a new idea for justice?

The Helsinki Foundation for Human Rights has decided to launch a survey on the extent of the Polish courts’ use of remote proceedings since March last year.

As part of the survey, we tried to answer the following questions:

• How often do courts make use of the possibility to hold an e-trial?
• What tool do they use to conduct them?
• Do litigants complain about technical problems resulting from their participation in remote proceedings?
• Are e-trials still open to the public?
• Are judges trained to handle this new form of proceedings?

In total, the Foundation received replies from 65 courts (11 courts of appeal, 45 regional and 9 district courts).

Growing popularity

Penitentiary courts, in which e-hearings have been gaining in popularity since April 2020, are most keen to deal with cases remotely. The numbers are quite impressive – for example, the Penitentiary Division of the Regional Court in Świdnica remotely delt with 1075 cases, whereas the Regional Court in Bydgoszcz conducted 2247 cases remotely. The situation is slightly different for other divisions. As a rule, as months go by, courts are increasingly more willing to conduct remote trials or hearings. For example, in Q3 and Q4 2020, 110 and 206 cases, respectively, were proceeded remotely by the Regional Court in Gdańsk, whereas in January 2021 alone the figure was as a high 188. However, let us not forget that for some courts these figures remained at a similar level throughout the whole surveyed period (e.g., the Regional Court in Warsaw’s Praga borough, the Regional Court in Nowy Sącz or the District Court for Warsaw’s Wola borough).

Remote sittings are also used more frequently in civil and commercial cases than, say, in criminal cases. Dr Marcin Ciemiński, Partner at Clifford Chance, points out that “court proceedings in commercial matters are increasingly becoming document-based proceedings. The impact of documentary evidence is increasing, and witness evidence is more frequently taken through written testimony. What is more, thanks to developments in technology, witnesses and experts can be interviewed more efficiently. Hence, nothing seems to stand in the way of more widespread use of remote trials in commercial cases. I do not have the slightest doubt that this would tangibly improve the handling of commercial matters, and my experience so far has been positive.”

The findings reveal a lack of uniformity in the approach to the remote conduct of trials and hearings, which results in significant differences between courts in many areas. “Such divergences may lead to de facto disparities in access to justice in different regions of Poland and in different courts (or even divisions of courts), which may raise questions concerning compliance with standards of human rights protection and generate a feeling of injustice”, commented Dr Marcin Szwed, HFHR lawyer.

There are substantial differences between courts of the same level (and sometimes even between those located in the same city) related to, among other things: the software used to conduct remote trials or hearings, technical facilities for the remote conduct of proceedings, the level of training received by judges and court personnel, and the number of cases dealt with remotely, which, to a certain extent, is a result of the above factors.

“We are particularly concerned by the fact that members of the public are not allowed to take part in remotely conducted trials in as many as 12 regional courts and two district courts that took part in our survey”, HFHR lawyer Krzysztof Jarzmus notes and adds: “The absence of specific provisions governing remote proceedings may not lead to violations of the general principle that trials are open to the public.”

A further but prudent step is needed…

According to the authors of the report, a comprehensive and interdisciplinary reflection on the way they are conducted is necessary to avoid wasting the potential of e-trials. A more proactive practical approach is also required, especially the provision of appropriate equipment and training for judges, court personnel and counsel.

The report was prepared as part of New Technologies – New Justice a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

The Helsinki Foundation for Human Rights has decided to launch a survey on the extent of the Polish courts’ use of remote proceedings since March last year. In total, the Foundation received replies from 65 courts (11 courts of appeal, 45 regional and 9 district courts).

The findings reveal a lack of uniformity in the approach to the remote conduct of trials and hearings, which results in significant differences between courts in many areas.

“Such divergences may lead to de facto disparities in access to justice in different regions of Poland and in different courts (or even divisions of courts), which may raise questions concerning compliance with standards of human rights protection and generate a feeling of injustice”, commented Dr Marcin Szwed, HFHR lawyer.

The report was prepared as part of New Technologies – New Justice a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

Below you can find a comparative analysis regarding presence of new technologies in justice system of USA, Italy, Spain, Estonia, Japan, Czechia, Estonia, Wales and England.

We will publish a series of talks called ‘New Technologies – New Justice – New Questions’ and try to find answers to these questions and maybe solutions which are not obvious.

New Technologies — New Justice is a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

The debate participants included:

• Ewa Ivanova, journalist, Gazeta Wyborcza
• Marcin Ciemiński PhD, Clifford Chance Warsaw
• Piotr Kładoczny PhD, Helsinki Foundation for Human Rights.

The debate is part of ‘New Technologies — New Justice’ – a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

The debate participants included: - Karolina Głowacka, journalist, Radio TOK FM - Marcin Szwed PhD, Helsinki Foundation for Human Rights - Sylwia Błach, programmer of the Supercomputing and Networking Center Polish Academy of Sciences. The debate is part of 'New Technologies — New Justice' - a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

The debate participants included:

• Jakub Górnicki, journalist, Outriders;
• Kate Scott, Clifford Chance London;
• Konrad Siemaszko, Helsinki Foundation for Human Rights.

The debate is part of ‘New Technologies — New Justice’ – a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.

The debate participants included:

• Jolanta Ojczyk, journalist, prawo.pl;
• Sylwia Gregorczyk-Abram, Clifford Chance;
• prof. Ireneusz Kamiński, The Institute of Law Studies of the Polish Academy of Sciences.

The debate is part of ‘New Technologies — New Justice’ – a joint project of the Helsinki Foundation for Human Rights and Clifford Chance.