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Interview mit CCBE-Präsident Panagiotis Perakis

Der 60-jährige Grieche ist seit Jahresbeginn Präsident des CCBE (Rat der europäischen Anwaltschaften). Die Präsidentschaft wechselt jährlich. Panagiotis Perakis ist Rechtsanwalt in Athen und seit 2014 im CCBE engagiert. Er spricht über die Herausforderungen iZm künstlicher Intelligenz, die Vorschläge der Europäischen Kommission und den Ukraine-Konflikt, der Europa in Atem hält. Hier lesen Sie die englische Originalfassung des Interviews, die deutsche Übersetzung finden Sie im Anwaltsblatt, Heft 1/2023 auf S 54 ff.

In the position paper on the AI Act, the CCBE expressed objections to the use of artificial intelligence (AI) in the context of law enforcement and, in the field of justice against full decision-making by an AI. Is the right to a fair trial under Art 6 ECHR in danger?

Τhe use of AI raises many questions, especially with regard to fundamental rights and the rule of law. In several aspects AI may improve the quality of our justice system and ease access to justice. However, as a general rule, the CCBE considers that the respect for fundamental rights and adherence to high ethical standards that underpin institutions based on the rule of law, cannot be subordinated to mere efficiency gains or cost-saving benefits, whether for court users or judicial authorities. AI systems should be introduced in the justice system only when there are sufficient safeguards against any form of bias or discrimination.

Regarding in particular the use of AI systems for law enforcement purposes, the CCBE considers that the use of AI in criminal justice systems and law enforcement raises numerous issues, such as inherent bias in tools used for predicting crime or assessing the risk of re-offending. Such forms of discrimination pose a threat to civil rights. Beyond bias and discrimination, fundamental rights risk being undermined by the use of AI systems which replace necessary individual assessments by statistical calculations or assessing probabilities. A number of predictive policing systems have been shown to reflect biases in the dataset upon which they have been educated or in the features of the system. Such systems tend disproportionately to include people from certain communities. The AI tool will therefore reflect policing bias. Predictive policing systems can undermine the presumption of innocence by treating people as individually suspect on the basis of inferences about a wider group.

Additionally, the algorithms work is usually not disclosed to the persons affected by the result of their use. This leaves the defendant unable to challenge the predictions made by the algorithms, which jeopardises the right to a fair trial.

What procedural principles are being undermined?
The CCBE notes that the provision of the AI Act, and its Annex III.6.a. which allows AI systems to assess the risk of offending, creates a risk of violating the principle of the presumption of innocence. Threats to fundamental rights also arise from the assessment of the risk of “reoffending” and “risk for potential victims of criminal offences”. The CCBE considers that the right to a fair trial begins with a fair investigation. Therefore, the proposal should definitively exclude the use of AI tools for the purposes of so-called “predictive policing” and for the purposes of determining risks of future offending as an aid to the making of decisions as to the granting of bail, the imposing of a sentence following conviction, the making of decisions concerning probation and, generally, during prosecution and trial.

The CCBE also points out that the principles of transparency and explainability must be strictly observed. In those cases where the manner in which an AI system produces an output is not transparent or where that output cannot be sufficiently explained, the output must not be taken into account by a law enforcement authority. In any case, the outputs of AI systems for law enforcement purposes ought not to be admitted as evidence in any subsequent judicial proceedings. Such outputs must be removed from the Court file.

How can these developments be prevented?
Generally speaking, the CCBE considers that a set of rules and principles governing the use of AI must be defined and adopted. In order to ensure respect for fundamental rights and the right to a fair trial, it should be clearly and explicitly expressed that the proposed regulation does not preclude the establishment of additional general rules further restricting or prohibiting the use of artificial intelligence in the fields of justice, including criminal investigations by law enforcement authorities. Use of AI tools must be reconciled with the fundamental principles that govern the judicial process and guarantee a fair trial, including the rules of adversarial procedures, the principle of equality of arms, and the impartiality of the court. Even if there might be a temptation to sacrifice all for efficiency, these fundamental rights must remain guaranteed to all parties seeking justice.

The CCBE stresses that the AI Act should be strengthened with a prohibition of automated decision making by AI systems in the field of Justice or even systems which promote the temptation to only rubber-stamp decisions prepared by AI systems. Accordingly, the CCBE considers that the judge should not be allowed to delegate all or part of his/her decision-making power to an AI tool, and that a right to a human judge should be guaranteed at all stages of the proceedings.

New proposals presented by the European Commission, such as the Data Act or the Fight against child sexual abuses, contain provisions allowing broad access to data not only by public authorities but also private entities. Do you think that these proposals contain enough safeguards to ensure professional secrecy?
These two proposals raise concerns with regard to the protection of the confidentiality of communications and professional secrecy /legal professional privilege (PS/LPP).

Regarding the Data Act, the proposal aims to ensure fairness in the allocation of value from data among actors in the data economy and to foster access to and use of data. More specifically, the Data Act provides for several obligations, upon data holders in particular, to make data available. Recital 7 of the proposal provides that “no provisions of this Regulation should be applied or interpreted in such a way as to diminish or limit the right to the protection of personal data or the right to privacy and confidentiality of communications”, with specific reference to the GDPR and the e-privacy directive. It also contains provisions in order to guarantee respect of trade secrets or intellectual property rights. The CCBE welcomes such provisions but considers them insufficient to ensure the protection of PS/LPP, as guaranteed by the ECHR and EU primary law, as such principle may cover data which are not personal nor protected by trade secrets.

What do you suggest?
The Data Act should provide for a general provision to ensure an adequate protection of PS/LPP. It should be amended to include that the Regulation applies without prejudice to national rules regarding professional secrecy, such as rules on the protection of professional communications between lawyers and their clients. The obligations provided for by this Regulation should not apply to professionals subject to professional secrecy, where such obligations would lead these professionals to breach their professional secrecy.  This is our main position regarding PS/LPP.

In addition, there are other sources of concerns, like the lack of a clear definition of the concepts used by the proposal of “exceptional need”, “public emergency”, as well as the reference to national procedures, which creates a high risk of divergent interpretations and increases the likelihood of interference with fundamental rights.

Is such interference with fundamental rights justified when it comes to combating child sexual abuse?
Regarding this proposal the CCBE fully supports the objective to combat such crimes and the adoption of specific measures to prevent and fight it; however, the CCBE has serious concerns, which are also shared by the European Data Protection Board and the European Data Protection Supervisor, over the threats posed by the proposal on the right to privacy, and the protection of PS/LPP.

A first main concern arises by the fact that the proposal has not repeated the transitional provisions of the Regulation 2021/1232, adopted to modify the e-privacy directive to fight against sexual abuses, pending the adoption of the current proposal, where a clause on the protection of PS/LPP is explicitly provided. The analysis of the proposal reveals that the necessary safeguards to ensure the protection of fundamental rights, including the confidentiality of communications, have been discarded. The proposal, which is the legal basis to the detection obligation lacks legal clarity and proportionality regarding the interferences and limitations to fundamental rights.

The CCBE is also deeply concerned by the involvement of private actors to identify, collect, and forward content information while they are not subject to any obligation of professional secrecy nor to democratic control. The CCBE is strongly opposed to the approach where the protection of fundamental rights is partly or fully delegated to private parties.

What remedies could be implemented?
It is up to the EU legislators to adopt clear legal provisions and safeguards to ensure that fundamental rights of all citizens are properly ensured and well balanced. The CCBE stresses that in all cases service providers should be required to ensure that the technology they used guarantees that there is no interference with any kind of data or communication protected by PS/LPP. They should be required to use all technological means available to leave protected material out of the scope of their detection obligation.

The conflict between Russia and Ukraine is currently shaking all of Europe. To what extent has the CCBE been able to provide support to the profession of lawyers in Ukraine?
The CCBE was among the first international organizations who reacted against the Russian invasion in Ukraine, issued a clear Statement on the 2nd day of war (25 February 2022). Since then, the involvement of the CCBE is continuous and in many different fields.

On 4 March 2022, a CCBE letter was sent to the Prosecutor of the ICC, offering any necessary support of the CCBE and its members in order to raise awareness and provide guidance to lawyers providing legal assistance to persons fleeing from Ukraine regarding the collection and preservation of evidence of war crimes that can be used by the Prosecutor of the ICC. Regarding Ukrainian people, to be practical and helpful, the CCBE prepared and published a list of contact points in the different European countries which can be contacted by people fleeing Ukraine and in need of legal assistance. In addition, two very successful webinars were organised by the CCBE and the European Lawyers Foundation, the first on the subject “Ukraine and the ICC: the role of European Lawyers”, and the second “EU Sanctions: Helping EU lawyers navigate the Russian sanctions”. Especially regarding the sanctions, the CCBE does not only provide immediate and accurate information to its members, but examines carefully the compliance of every measure with the Rule of Law, as well.

Regarding our Ukrainian colleagues and the profession of lawyer in Ukraine, the CCBE has provided and continues to provide for any possible type of support. Since March 2022 the Ukrainian National Bar Association (UNBA) representatives are invited to present regular updates on situation in Ukraine within the CCBE committees, the Standing Committees and the Plenary Sessions. In the April’s 2022 Standing Committee, the CCBE offered the opportunity to the UNBA representatives to have a direct contact and exchange on the current situation with the EU Commissioner for Justice, Didier Reynders, who was invited and participated.

What can be done for the affected colleagues?
To support Ukrainian lawyers who are forced to leave their country, the CCBE prepared and published a recommendation on qualifications of Ukrainian lawyers which invites the Bars and Law Societies of the EU Member States to undertake steps that facilitate the exercise of the profession outside Ukraine.

Following a request received from the UNBA in relation with some national reforms in Ukraine touching the legal profession, proposed by the Government without any involvement of the UNBA, the CCBE offered its continuous support for the defence of the independence and the core values of the profession.

CCBE President, James MacGuill, visited Ukraine at the beginning of September 2022, taking part at the meeting of the UNBA Supreme Council and leaders of Ukrainian Regional Bar Associations. He also met with the Board of Trustees responsible for distributing international donations. During this visit he received the High Award of the UNBA “Defender of the Bar” in recognition of his leadership in helping Ukrainian lawyers.

As regards financial support, the CCBE firstly decided to waive the 2022 subscription fee for the UNBA and, subsequently, donated money to the UNBA to support Ukrainian lawyers.

Finally, at the November’s 2022 Plenary Session, CCBE’s Human Rights Award was given to Ukrainian lawyer Nadia Volkova and to the UNBA.

More details on these and other actions undertaken by the CCBE regarding the situation in Ukraine are available on the CCBE website under the section “Actions”.

What impact will the conflict have on the CCBE?
As for the future, I can confidently assure you that we will continue to stand by our Ukrainian colleagues and the legal profession in Ukraine to the best of our ability.

Regarding, finally, the future status of the Federal Chamber of Lawyers of the Russian Federation within the CCBE, we have already started the relevant discussions. The decision will be taken soon by our members, following a fair and clear procedure, in accordance with our statutes.

Die Commission de Conseil des Barreaux européens (CCBE – Rat der europäischen Anwaltschaften) wurde 1960 mit Sitz in Brüssel gegründet. Sie ist die Verbindung der nationalen Anwaltschaften der 27 EU-Staaten, 3 EWR-Länder und der Schweiz, weitere Staaten sind assoziiert. Weitere Informationen: ccbe.eu