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DOI: https://doi.org/10.34069/AI/2023.67.07.6
How to Cite:
Prokhazka, H., & Melnyk, O. (2023). Implementation of AI in international law and administrative law (in the context of human
rights protection). Amazonia Investiga, 12(67), 66-77. https://doi.org/10.34069/AI/2023.67.07.6
Implementation of AI in international law and administrative law
(in the context of human rights protection)
Впровадження штучного інтелекту у міжнародне та адміністративне право
(в контексті захисту прав людини)
Received: June 1, 2023 Accepted: July 12, 2023
Written by:
Prokhazka Hanna1
https://orcid.org/0000-0003-3125-0953
Melnyk Olena2
https://orcid.org/0000-0001-5213-595X
Abstract
The purpose of the article is to analyze the
possibility of introducing artificial intelligence
into the rules of international and administrative
law in the context of ensuring human rights, in
particular through the activities of public
administration bodies and the consideration of
administrative cases. Research results. The
article outlines the problems of the international
legal definition of artificial intelligence using the
examples of resolutions of the United Nations,
the Council of Europe, the Code of Ethics of
transnational corporations and legal instruments
of individual States. Practical meaning. The
authors analyze the state of international legal
regulation and the possibility of using AI,
provided that human rights are respected at the
national level, including in the activities of
bodies authorized to consider cases of
administrative offenses, implementation of
electronic justice in administrative and
procedural court practice. Value/originality.
Scientific proposals regarding the relevance of
the international legal definition of the concept of
artificial intelligence, the problems of observing
human rights in its application both at the
international and national level, in particular, the
use of its opportunities in justice for the purpose
of more effective consideration of cases, and at
the same time reducing the burden on judicial
systems are formulated, ability to conduct legal
proceedings using AI is analyzed.
1 Candidate of Legal Sciences, Assistant of the Departmentof Theoretical and Legal Disciplines of Poltava Law Institute of Yaroslav
Mudryi National Law University (Ukraine).
2 Candidate of Legal Sciences, Assistant of the Departmentof Constitutional, Administrative, Environmental and Labor law of Poltava
Law Institute of Yaroslav Mudryi National Law University (Ukraine).
Prokhazka, H., Melnyk, O. / Volume 12 - Issue 67: 66-77 / July, 2023
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Keywords: international law, human rights,
administrative law, artificial intelligence, court
procedures, justice.
Introduction
Artificial intelligence is a step towards the
growth of Internet technologies, which allows
automating processes used to be executed by a
person using algorithms that largely mimic his
(her) thinking. It is clear that the process of AI
full-scale implementation in all spheres is
complex and must be justified and governed by
relevant regulations. However, the facts of
artificial intelligence application in both private
and public legal relations (State authorities,
justice) already exist, and they mostly have a
positive influence on such relations, because the
approach thoroughly expands the very
possibilities of the latest technologies, providing
greater accuracy, objectivity, taking into account
certain features when forming a decision or
result. At the same time, the analysis of the
initiatives by international organizations of
individual States indicates that the international
community is aware of possible risks of a legal
nature, so some countries are trying to examine
the possibilities of using such technologies.
Nowadays, the use of modern achievements in
the cybernetic sphere has two main problems,
which are based on: 1) technologies that are
useful, but such opportunities are unknown to
mankind; it is difficult to outline the nature of
their use; 2) technologies requiring high
technological and legal development of the State,
which automatically excludes other, less
developed countries from its use or increases the
risks of violations in various areas of national and
international law.
Thus, the legal regulation of Internet
technologies, including artificial intelligence, is
at the stage of its active establishment, in the
process of creating unified legal standards of
behavior, which determines the relevance of the
proposed study.
The problems of the AI development largely
depend on the specific directions of the
cybernetic technologies’ evolution, but there is a
question of ensuring balance between the
interests of civilization, the latest technologies
and preservation of human values: political,
economic, legal, cultural and religious ones.
The use of artificial intelligence and other
Internet technologies is explored within the areas
of international and national law (administrative)
and judiciary. The aim of our Article is to analyze
the state of international legal regulation and the
possibility of using AI in the activities of bodies
authorized to consider cases of administrative
offenses, the implementation of electronic justice
in administrative and procedural judicial
practice.
To reach the purpose of the research, we set the
following tasks:
1) to study the use of artificial intelligence in
the international legal practice in the context
of human rights protection;
2) to investigate the approaches to the
definition of artificial intelligence at the
international and national level;
3) to examine the ways of application of
artificial intelligence in administrative
justice;
4) to learn the examples of the AI technology
introduction in international and national
(administrative) legal acts.
Literature Review
The first studies of the legal aspects of artificial
intelligence appeared in the 20th century, in the
Thesis by Anne von der Lieth Gardner “An
Artificial Intelligence Approach to Legal
Reasoning” (Gardner, 1987). In the same year,
the first International Conference devoted to the
problems of artificial intelligence was held,
which prompted the creation in 1991 of the
International Association of Artificial
Intelligence and Law and the first publication on
the topic "Artificial Intelligence and Law".
As noted by John Markoff (Markoff, 2016), the
era of technological progress (1950s) and
designing of personal computers (1970s) became
the starting point for the emergence of artificial
intelligence. Complete computerization and the
world of "big data" have actually become what
determines our development today. The author
also talks about the fact that today is the turning
point in the global development of informatics,
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programming, robotics, neurobiology, etc., after
which the world awaits a machine that replaces
or surpasses a person in certain qualities.
There are many discussions regarding the
interpretation of the very concept of "artificial
intelligence". On the one hand, it is interpreted
very abstractly as: the ability of the system to
autonomously select the best solution to the
problem from the set of variants (Yefremov,
2008); comparison of people's abilities and
qualifications with available vacancies
(Herweijer & Waughray, 2018); the ability of an
automated system or computer program to
perform human functions, making optimal
decisions based on the analysis of external
factors and taking into account the life
experience of mankind (Horbenko &
Meleshkevych, 2016); the ability to solve
complex tasks; ability to learn, generalize and
analogies (Machuskyy, 2020); the possibility of
interaction with the world through
communication, perception and the admission
into consciousness of perceptions (Yefremov,
2008).
On the other hand, there are many more specific
definitions and interpretations, according to
which artificial intelligence is: a robot or a
program that can replace a person in any activity
(Varenko, 2013); a section of informatics that
deals with the formalization of tasks resembling
the job performed by a person (Andrew, 1983);
science and technology capable of reproducing
the thought processes of the human brain and
enabling them to create and process various
computer programs, as well as intelligent
machines that could completely replace and
simplify human work (Pelcher, 2018). As we can
see, there is unified approach to this problem.
Apparently, there is no exact answer to the
question "What is AI?". Be that as it may,
artificial intelligence today is a branch of science,
the development of which is closely related to the
solution of specific practical issues aimed at
optimizing the processes.
Methodology
Methodology is a set of approaches, ways,
methods, techniques and procedures that are used
in the process of scientific knowledge and
practical activity to achieve a predetermined
goal. To gain the purpose of our research the
following methods were used.
Methodology is a set of approaches, ways,
methods, techniques and procedures that are used
in the process of scientific knowledge and
practical activity to achieve a predetermined
goal. To gain the purpose of our research the
following methods were used.
Monography approach helped to examine the
works by foreign and Ukrainian scientists, who
investigated the issues related to artificial
intelligence.
Normative and dogmatic method was useful
when studying legal instruments enshrining the
definition of AI, legal regulation of the latter and
its impact on possible human rights violations
(resolutions of the United Nations, Council of
Europe, the European Union, the Code of Ethics
of transnational corporations and legal
instruments of individual States, etc.).
Analytical method was helpful when examining
the use of artificial intelligence in international
legal practice and in the area of human rights
protection.
With the help of logical method, the approaches
to the designation of the term “Artificial
Intelligence” at the international and national
level were investigated.
Analyses and systematization method made it
possible to consider the application of artificial
intelligence in administrative justice.
Legal and predictive method was applied to
explore the credibility of application of artificial
intelligence in administrative justice.
The method of generalization was applicated to
make proposals for the introduction of artificial
intelligence into justice with the aim of more
effective consideration of cases, and at the same
time – reducing the burden on judicial systems.
Results and Discussion
Use of artificial intelligence in international
law legal practice
In the process of using Internet technologies, an
individual leaves a significant amount of
information about himself (herself) in the
network and can only superficially affect its
editing or removal, making it vulnerable from the
standpoint of observing the rights and freedoms
of a person and citizen. Numerical services store
on their servers’ data that allows accurate
identification of a person, his (her) interests,
lifestyle, preferences and circle of close friends.
Already today this information is used to prepare
personalized advertising that we receive every
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day. The problem of ensuring the AI legitimate
use in this aspect is that the technology is capable
of “adapting” to the human personality, copy his
(her) most common traits, misleading others,
which creates a wide margin for possible abuses
and violations.
In order to more accurately illustrate the
specificity of the problem, we can provide, as an
example, well-known Internet services that
process photo images, simultaneously uploading
information about family ties, origin of those
who have been registered. This effect is achieved
by using various mathematical algorithms
(Zuiderveen Borgesius, 2020). Without
questioning the legality and usefulness of such
services, nevertheless, we can conclude that the
level of development of such technologies can be
used with certain abuses.
It should be noted that there are still no
guaranteed secure data warehouses that cannot
be hacked. Cases of merging personal data from
a well-known social network are a confirmation
of this. However, along with the threats of
violations in the protection of personal data, the
breach of ethical norms is no less important, for
example, because of the ability of technology to
simulate the behavior of images of both dead and
alive. Body movements, facial expressions, as
well as the possible (but not used) ability to
reproduce the language of the depicted are
evidence of how far technologies have advanced
in improving virtual space and reality. Such
"living" portraits look quite convincing; allow
concluding about human personality, character
and behavior. While this technology is useful and
interesting, the information provided to the sites
is excessive, communicated is communicated to
an undetermined audience and involves
unauthorized persons without any consent of the
owner. For example, computer models are
successfully used in cinema, when video content
uses simulated artificial intelligence personalities
are used in video content. In the USA, this is seen
from the perspective of the need to protect
intellectual property rights. In particular, in 1985
the specific act was adopted in California (USA),
which protects the rights of famous people heirs
from the commercial use of the images of the
deceased (Kulinich, 2011). Computer models are
not considered as individuals, but they are able to
help in the formation of public opinion, because
famous person from the past speaks to the
audience, although not of his (her) own free will.
On 16 February, 2017, the European Parliament
adopted Resolution 2015/2103(INL) on Civil
Law Rules on Robotics with recommendations to
the Commission (European Parliament, 2017),
which, according to Horodyskyi (2017), laid the
foundations for the understanding of robotics and
artificial intelligence and became, despite its
advisory nature, the basis for the introduction of
subsequent international standards. The
Resolution provided for the introduction of civil
liability for damage caused by robotics and
artificial intelligence to agents, i.e. natural
persons who use such technologies. This legal act
also refers to the introduction of legal grounds for
the AI use, establishing special common
European system for the registration of these
schemes, the assignment of individual
registration numbers allowing the device and its
owners to be reliably identified, and the terms of
compensation for damages; creating special
robotics control agency is envisaged, the
problems of human dependence on technical
examples are covered, including the problems of
robotic human organism.
The discussion of the possibility of recognition
of the computer program the author of the work
and the comparison of human intelligence with
artificial one is one of the most interesting
projects of a legal nature in the world. For
example, back in 2016, Japan began the process
of developing regulations on copyright
protection of creative products designed by
artificial intelligence, while Australia and the
United States recognize copyright exclusively for
humans.
According to the Resolution 2015/2103(INL)
(European Parliament, 2017), responsibility for
the damage caused cannot be assigned to robots
(including artificial intelligence used by
robotics), but only to the person, who is a
manufacturer, operator, owner or user. In order
to establish legal liability, it is necessary to prove
the guilt of a person who could foresee and
prevent the occurrence of such damage. In this
regard, it is proposed to introduce a mandatory
system of insurance against the occurrence of
negative consequences and harm.
Besides, in 2018, the CEPEJ European Ethical
Charter on the use of artificial intelligence (AI)
in judicial systems and their environment
(hereinafter – the Ethical Charter) (European
Commission for the Efficiency of Justice, 2018)
was adopted, which is important for determining
the place of Artificial Intelligence in the
European judiciary. In fact, this act was the first
step towards promoting the AI use in the area of
justice.
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The efforts of international organizations to
legally consolidate relations related to the use of
artificial intelligence have been supported by a
number of leading States aware of the prospects
of such regulation nowadays and in the future. In
fact, we are observing the traditional process of
supplementing international and national law
with the rules, which have become in demand by
time and technology with their progressive
practical use.
For example, Telychko, Rekun and Chabanenko
(2020) draw attention to the legal experience of
various States of the world: South Korea
(“Korea’s Artificial Intelligence Robot
Development Law” (2005), “Robot Ethics
Charter” (2007) and “Legal regulation of
autonomous systems in South Korea” (2012); the
USA: (Road map for US Robotics, 2011, 2016
and the National Robotics Initiative, 2011,
2016); Japan (Guidelines for the Safe Use of
New Generation Robots, “Japan’s Economic
Revitalization Plan”, “New Robot Strategy”.
Japan’s Robot Strategy: Overview, Strategy,
Action Plan” (New Robot Strategy; Japan’s
Robot Strategy: Vision, Strategy, Action Plan,
2015); China: (Guidelines on Promoting the
Development of Industrial Robots, 2014 and the
Global State Development Program “Made in
China 2025, 2015”; Estonia: (Robot Courier Act
(2017)); Germany: (Act on the use of highly
automated vehicles (2017)). Microsoft, in
cooperation with the specialists from the
University of Science and Technology of China,
are trying to endow robotics with human abilities
(Wehner 2021).
Definition of artificial intelligence. Artificial
intelligence from the human rights
perspective at the international and national
level
Considering the need for such legal regulation,
its main drawback remains the uncertainty of the
State’s attitude to artificial intelligence, which is
typical of the entire Internet industry, where
technology significantly ahead of regulation of
political, legal, religious, and ethical aspects.
That is why we still have any established
international legal standard and legal AI
definition. In addition, the existence of different
approaches in national legal systems, as
evidenced by the above examples, sometimes
diametrically opposed, testify to the scale and
specificity of the problem, especially in the era of
globalization.
For example, the Organization for Economic Co-
operation and Development (hereinafter –
OECD) in the Recommendation of the Council
on Artificial Intelligence (OECD, 2019)
indicates that AI system is a machine-based
system, which can make predictions,
recommendations or decisions affecting the real
world or virtual environment for a certain set of
human-defined purposes. AI systems are
designed with different levels of autonomy.
Within the framework of national law, the most
vivid definition of artificial intelligence is
presented in the USA legislation, where a series
of traits defining the concept of artificial
intelligence is formulated, which demonstrate
levels of human and cybernetic interaction where
artificial intelligence is able to independently
search for ways to solve tasks, act autonomously
towards a person and at least be trained
(Congress, 2017).
Legal regulation of artificial intelligence,
according to Burov (2019), can lie in:
a) positioning robots with artificial intelligence
only as objects of social relations. According to
this approach, work with AI is perceived only as
a possible help in social relations, where the
actors are physical and legal entities;
b) understanding robots with artificial
intelligence as individual actors of legal
relations. Under this approach, robots with
artificial intelligence is perceived as separate
subjects of social relations, with the ability to
relatively independently and to a sufficient extent
realize and evaluate the meaning of their actions
and the actions of other persons; c) positioning of
robots with artificial intelligence as individual
subjects of legal relations and possible objects
thereof. Undoubtedly, the indicated directions of
development of artificial intelligence are still
more futuristic, especially in the approach to
robots as separate actors of legal relations, since
this mean a certain equating of artificial
intelligence to the intelligence of the person.
This, in turn, gives rise to a number of
problematic ethical and legal issues, particularly
in the area of human rights, as it is currently
difficult to predict how the legal regulation of the
consequences of the use of artificial intelligence
and the protection of human rights in all its
manifestations will correlate in the future. At the
same time, the obvious benefits of technology
and its continuous development will require the
necessary legal steps the part of the States.
Today, the CIS countries face the need to interact
with the digital world as well. Despite some
delays in the deployment of the latest information
technology, there are successes in certain
digitalization sectors in Ukraine, considering the
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scale of work that has been carried out over the
past decades. Ukraine actively participates in the
international discussion on the development of
artificial intelligence, gradually integrates into
the digital (virtual) space, increasing the number
and variety of digital services provided in the
state every year. In particular, the Ukrainian
Concept for the development of artificial
intelligence was taken into account by
international organizations, and it began to be
studied by the Council of Europe and UNESCO.
The implementation of one of the digital
initiatives became the online portal of public
services “Diya”– an access point to all public
services that the state provides to citizens and
businesses. The launch of this application has
become a significant step forward the
digitalization of personal documents; in
particular, Ukraine has become the first state in
the world where a citizen’s digital passport is
legally and practically implemented.
This, in turn, increased the efficiency and
convenience of document circulation, reduced
the bureaucracy of the system of providing
administrative services, and eliminated the
possibility of a corruption component in the
“citizen and State” legal relationship. Along with
this, the directions of digitalization of the state
are recognized: updating of legislation,
streamlining the work of State registers, court
activities, as well as digitalization in the fields of
health care, education, transport, etc.
A certain shift in this process was the accession
of Ukraine to the OECD Guidelines in 2019 and
signing the OECD-Ukraine Memorandum of
Understanding (OCDE, 2014), in which, among
other things, it is noted that Ukraine joined the
Recommendation of the OECD Council on
artificial intelligence.
It is important that in 2020 the Decree of the
Cabinet of Ministers of Ukraine “On Approval of
the Concept of Development of Artificial
Intelligence in Ukraine”, which defines artificial
intelligence, was passed (Resolution of the
Cabinet of Ministers of Ukraine No. 1556-r,
2020). The possibility of applying it only if the
rule of law, fundamental rights and freedoms of
man and citizen, democratic values, personal
data protection, privacy is respected, as well as
an initiative to develop its own Code of Ethics for
artificial intelligence is separately established.
Among the identified problems are: complexity
of verifying compliance of artificial intelligence
systems to legislation and existing ethical
principles; insufficient level of information
security and data protection in the information
and telecommunication systems of State agencies
due to the outdated system for identifying and
assessing information threats; lack of artificial
intelligence technologies application in judicial
practice, etc.
The priority directions for the implementation of
the Concept are: Ukraine’s involvement in a
significant segment of the world technology
market artificial intelligence technologies and
leading positions in international rankings (AI
Readiness Index by Oxford Insights, AI Index by
Stanford University, etc.); introduction of
artificial intelligence technologies in the area of
education, economy, public administration, legal
regulation and ethics, cyber security, defense and
the field of justice; increasing the level of public
safety through the use of artificial intelligence
technologies when devising measures for the re-
socialization of convicted persons and the risk of
repeated offences. It should be noted that a
number of European States, as well as Ukraine,
are already using artificial intelligence
mechanisms in the legal sphere. It is the system
for recording administrative offenses in the area
of road safety in automatic mode, which records
such violations of the Traffic Rules as: exceeding
specified speed limits for vehicles and violations
of traffic rules and stopping on the route lane.
Offenses are recorded by automatic recording
complexes – stationary technical means (control
devices) enabling automatic detection and
photography or video recording of events with
the signs of administrative offenses in the area of
road safety (Articles 14-2, 33, 122 of the Code of
Administrative Offenses (Law of Ukraine
No. 2747-IV, 2005). Vehicle license plate
recognition is a manifestation of the artificial
intelligence functions, which is used here.
Not only States, international organizations, but
also large private companies are trying to
implement the principles of dealing with
artificial intelligence. A technical leader – Bosch
has developed a special Code of Ethics for
artificial intelligence (Bosch, 2020), which
enshrines the main principles: artificial
intelligence should be safe, reliable, and
understandable and remain under human control.
Bosch, as a multinational corporation, plans to
manufacture all products using artificial
intelligence by 2025 and believes that it is the
engine of global progress. The company offers
three approaches when a person retains control
over artificial intelligence: 1) artificial
intelligence plays a purely supportive role;
2) smart system autonomously makes decisions
that an individual can cancel at any time, for
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example, during autonomous driving, in the
parking assistance system; 3) used for
applications in braking systems. Bosch joined the
High-Level Expert Group on Artificial
Intelligence –the agency appointed by the
European Commission to investigate the ethical
aspects of artificial intelligence. The Code of
Ethics emphasizes that its actions are based on
the values enshrined in the Universal Declaration
of Human Rights.
This is significant progress for transnational
corporations, since, in fact, not only rights but
also obligations are emerging in dealing with
artificial intelligence. To date, there are no
international legal instruments establishing strict
obligations for big business to respect, for
example, human rights. International
organizations, led by the UN, are limited only to
documents of a recommendatory nature, and the
introduction of such a Code of Ethics is an
undoubted step into the future.
As noted above, individual States are already
developing their own legal framework and
defining the principles of dealing with artificial
intelligence, which will be the basis for their
domestic and foreign policy. For example,
Androshchuk (2020) notes that Poland has
implemented policy for the development of
artificial intelligence for 2019 – 2027 in
accordance with new world trends and the
international obligations undertaken by the State.
According to the Memorandum on the AI
development, a plan is being developed for the
comprehensive implementation of artificial
intelligence in almost all spheres of State
functioning in order to support Poland’s desire to
maintain and improve its place among the
world’s leading countries. The main goal of
Poland is to join the narrow group of 20 – 25%
of countries establishing artificial intelligence.
By 2025, more than 700 companies using
artificial intelligence shall be created in the
country; to achieve this in 2023, Poland will
require investments to develop artificial
intelligence in the amount of approximately 9.5
billion zlotys. The proposed example illustrates
the prospects for the development of artificial
intelligence and its strategic importance for any
country in the world.
It is worth noting that in legal regulation of
artificial intelligence development special
attention is paid to the connection of artificial
intelligence with ensuring the observance of
human rights. The concept of their recognition
and protection has undergone a long civilization
evolution, and AI can become the element
capable of harming it. Therefore, international
and national acts dedicated to this issue, although
they do not have established conclusions,
constantly emphasize the need to respect human
rights.
In light of the observance of human rights, the
use of artificial intelligence can be compared
with the introduction of an “electronic person”,
which is associated with the establishment of
legal capacity of artificial intelligence, which is
divided into: legal capacity of artificial
intelligence based on the model of a natural
person; legal personality of artificial intelligence
based on the model of legal entity.
AI intervenes in the sphere of human relations, in
private life, capable of influencing the fate of a
person and humanity. According to the authors,
there are possible risks associated with the
observance of basic human rights in the area of
artificial intelligence application, and may
manifest themselves in military affairs, due to the
violation of fundamental human rights, for
example, the right to life, freedom of speech and
assembly; non-discrimination; effective legal
assistance; in ensuring a fair trial, including in the
exercise of procedural rights. Artificial
intelligence is able to hold a wide range of
information about the person, which affects the
so-called “electronic sovereignty of the person”
including his (her) rights and obligations. This
forms the concept of the “electronic person”; the
process of creating such a person has already
begun through the formation of the personality of
artificial intelligence and a number of norms
aimed at establishing interaction and protecting
human rights from the consequences of the AI
activities (Coeckelbergh, 2010).
As for the sphere of the judiciary, it is quite
conservative among public institutions and
resistant to dynamic social changes. However,
the introduction of AI systems is already taking
place in some States (USA, China, Japan), and
electronic justice systems are successfully
operating in a number of countries around the
world. Recommendation Rec (2001)3of the
Committee of Ministers to member states on
the delivery of court and other legal services
to the citizen through the use of new
technologies (Committee of Ministers, 2001),
among other things, indicates the need to enable
commencement of proceedings by electronic
means, as well to carry out further procedural
actions in electronic work flow production.
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Application of artificial intelligence in
administrative justice
With regard to administrative justice in Ukraine,
currently participants in the administrative
process have the opportunity to submit electronic
evidence and use electronic digital signature. The
legislator also enshrines provisions according to
which documents (in particular, procedural
documents, written and electronic evidence, etc.)
can be submitted to the court and proceedings
can be conducted by the parties to the case in
electronic form using an electronic system. It is
interesting to answer the following question:
whether the introduction of electronic court
proceedings would enhance the protection of
rights, freedoms, interests, make justice
effective, transparent, accessible and, ultimately,
more economical? This is especially relevant in
the context of administrative proceedings, where
one of the parties to a legal dispute is an
individual, who is opposed to the system of
public power through the subject of power.
The issues related to the use of artificial
intelligence technologies are the provision of an
electronic court and availability of legal
proceedings (for example, administrative one or
consideration of cases on administrative
offenses) with the possibility of using a virtual
judge (Slingo, 2020).
The leader in the AI use in justice remains the
USA, which applies technology mainly in civil
and criminal cases. The Stanford Computational
Policy Lab has developed the algorithm assisting
judges when choosing a preventive measure:
custody or bail. China is also one of the first to
implement AI systems in the judiciary. Since
2017, there has been an online court in the form
of a mobile application of the Chinese We Chat
program. There is a video chat instead of a
courtroom and an avatar in place of a judge,
which is controlled by artificial intelligence. The
Hangzhou court became the first digital court; the
PRC Government further established similar
courts in Beijing and Guangzhou. Courts have
already considered about 119,000 cases. Such
courts are authorized to consider disputes in the
area of copyright, economic disputes on the
Internet, etc.
European Ethical Charter on the Use of Artificial
Intelligence in Judicial Systems and their
environment (European Commission for the
Efficiency of Justice, 2018) formulates 5 basic
principles for the use of technologies grounded
on artificial intelligence in judicial systems,
namely: 1) the principle of respect for
fundamental rights (i.e. compliance with the
principle of the rule of law); 2) the principle of
non-discrimination; 3) the principle of quality
and safety (requirement for proper and high-
quality training process and functioning of
artificial intelligence technology in the area of
justice); 4) the principle of transparency,
impartiality and justice; 5) the principle “under
the control of the user” (the AI user shall have an
assured level of autonomy in the use and
application of its functions with the aim of the
most effective implementation of his (her)
procedural rights). The listed principles cover the
functional aspects of the use of the so-called
“predictive justice”.
The analysis of national legislation in this area
allows us to conclude that the Concept of AI
Development in Ukraine (Resolution of the
Cabinet of Ministers of Ukraine No. 1556-r,
2020), provides one of the directions of
implementation of artificial intelligence in justice
“...adjudication of cases of minor complexity (by
mutual agreement of the parties) based on the
results of the analysis carried out using artificial
intelligence technologies, the state of compliance
with the legislation and judicial practice”.
According to Par. 20, Part 1, Article 4 of the
Code of Administrative Offenses of Ukraine
(Law of Ukraine No. 2747-IV, 2005),
administrative case of minor complexity (minor
case) is the case, in which the nature of the
disputed legal relationship, the subject of the
evidence and the composition of the participants,
etc., do not require preparatory proceedings and
(or) court sessions for full and comprehensive
establishment of its circumstances; the list of
such administrative cases is enshrined in Art. 6
of this Code.
However, clarification is needed on what the
legislator sees in the adjudication by artificial
intelligence – decision-making by the so-called
virtual judge or, after all, assistance of artificial
intelligence technology to the judge in making
decisions in this category of cases? Article 6 of
the European Convention on the Protection of
Human Rights and Fundamental Freedoms
(Council of Europe, 1950) enshrines the right to
review cases by an independent and impartial
court. However, this article and the comments
here to do not explicitly prohibit the AI
application, that is, indicate that justice is
administered only by a human judge.
Practices of the European Court of Human Rights
in the light of the violation of Article 6 of the
Convention due to the use of artificial
intelligence in decision-making are not yet
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available. National law details the norm of the
Convention in the Constitution of Ukraine.
Emphasizing the need for additional regulation at
the national level, we would like to note that
according to Art. 127 of the Constitution of
Ukraine (Law No. 254k/96-VR, 1996), justice
shall be administered by judges. In cases
determined by law, justice shall be administered
involving jurors. Similar legal view is enshrined
in Art. 92 of the Basic Law for the Federal
Republic of Germany (Federal Ministry of
Justice, 1949). Therefore, there is currently no
possibility to administer justice to another actor
than the judge; however, nothing prevents
optimizing his (her) and court’s work by
involving artificial intelligence. Therefore, the
second option is the help of artificial intelligence
for more effective, fast, and less prolonged
(protracted) consideration of certain categories of
cases, which will contribute to achieving more
accurate processing of information on the case
and avoiding errors in justice. In particular, the
Concept of the Development of Artificial
Intelligence in Ukraine (Resolution of the
Cabinet of Ministers of Ukraine No. 1556-r,
2020) mentions the possibility of considering
cases of minor complexity with the use of
artificial intelligence, i.e. it is possible to use such
a system that will be able to independently
summarize and analyze legislation, judicial
practice, and, accordingly, help the judge to
make a fair and legal decision. In this case, AI
can be a peculiar part of the administrative
process.
Regarding possible risks, these include
determining the likelihood of acceptance of a
mistaken judicial decision, which would violate
the right to a fair trial and may affect certain
procedural rights of the participants to the
proceedings.
Credibility of international recognition of
artificial intelligence standards of human
behavior
Recommendation CM/Rec (2020)1 of the
Committee of Ministers to member States on the
human rights impacts of algorithmic systems
(Committee of Ministers, 2020), defines the main
areas of human rights protection in connection
with the introduction of algorithmic systems,
because this concept is related to artificial
intelligence (which is the set of mathematical
processes and algorithms). Based on the above
Recommendation, we can say that artificial
intelligence is the result of mathematical
calculations combined with the activity of
algorithmic systems in real time. The imitation of
human features offered to it is only a background
to facilitate interaction with the user. In this case,
we are talking about the application of the same
algorithmic systems, only with a higher degree of
autonomy, and yet will remove his comparison
with human personality. In our opinion, such an
approach, at the current stage of development of
the mentioned technology, allows us to outline
the limits of legal regulation of this problem, will
be more in line with the existing technical and
legal realities and can be successfully
modernized in the future to meet new legal
challenges.
Considering the above, it should be noted that the
adoption of the Concept of Artificial Intelligence
Development in Ukraine is not enough, as it does
not yet provide for radical systemic changes,
including in the national law, and is of a
somewhat declarative nature.
In this regard, a model for Ukraine is a systematic
approach, which is often used by international
organizations. In particular, the UN, ensuring the
promotion of international standards for the
protection of human rights, notes that their
consolidation is possible not only through the
adoption of separate legal and regulatory acts,
concepts, strategies, as well as through political
and economic decisions aimed at the appropriate
regulation of various sectors and spheres of the
State management. Among such powerful
means, the UN highlights, for example,
education and ensuring access to it. It is not only
about the training of highly professional
specialists, but also creating broad access to
knowledge, which would allow successful
application of the latest technologies and
methods, and ultimately lead to the
popularization of these achievements and their
effective practical implementation. Thus,
according to the authors, the State strategy for the
development of artificial intelligence should
cover all sectors of the economy and be widely
supported in society through State policy,
financing of own projects, educational and
informational programs, adaptation of national
law and its individual branches.
The basis for such legal relations in some cases
is the recognition by artificial intelligence or
digital person, as a kind of improved human
being, standards of living human behavior
(Brodbeck, 2015). At the same time, this
approach is impractical, as it continues to replace
the fundamental concepts of the living and non-
living being. Making technology human,
securing copyright for it or recognition of its
moral and ethical obligations, rights and duties,
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can probably destroy the system of values that
had been formed for thousands of years and
which is not applicable to an inanimate
technology, even one endowed with the ability to
think (Schmidt & Cohen, 2014). Even in this
case, artificial intelligence should remain an
object, not a subject of relations. For the most
part, it is the application of the technology that is
being investigated, not its hazard due to the
existence or ability to think. Artificial
intelligence, due to the lack of socio-cultural add-
ons that form a person from birth and cannot be
equated with him (her) and is unlikely to become
a full-fledged actor of legal relations.
To date, the European Commission has proposed
the first ever legal framework for artificial
intelligence. The proposal provides a
comprehensive package on artificial intelligence
use and includes an updated Coordinated Plan on
Artificial Intelligence 2021 Review (European
Commission, 2021), ensuring respect for human
rights and, among other things, creating the first
legal framework for limiting artificial
intelligence, in order to support the security of
mankind.
Thus, artificial intelligence remains useful and
interesting technology serving for the benefit of
humanity and contributes to the strengthening of
international and national legal order.
Conclusions
Summarizing the above, we can note that
artificial intelligence technology requires perfect
legal regulation at the international and national
levels. There is concern about the growing role
of Internet technologies in human life and
especially in the context of their impact on the
individual’s rights and freedoms. The concept of
their protection was developed according to
humanistic principles and hardly implies that at
least part of them is attached to the machine.
Accordingly, at the international level, within the
UN and other organizations, global challenges
related to the spread of artificial intelligence, its
penetration into all spheres of human life and the
importance that will be given to artificial
intelligence in the near future.
Technologies created on the basis of artificial
intelligence or having an algorithmic
construction limited to human influence are also
considered dangerous, especially during their use
in law enforcement and judicial activities, since
the conclusions reached by artificial intelligence
carry a high risk of making a mistake and can
negatively affect the awareness of human
dignity. Recognizing the revolutionary nature of
technology in general, the international
community is trying to establish a system of
norms that would minimize possible risks and
protect humanity.
In turn, the States must independently determine
their attitude to the AI introduction. Each country
adapts its national law in accordance with the
conditions that are formed on the world arena,
respecting the rights, freedoms and interests of
citizens. Therefore, according to the authors, it
would be expedient for Ukraine to hold public
discussion (involving scientists from various
areas) on the problems of implementing systems
that use artificial intelligence, comprehensive
analysis of the achievements of other countries in
this direction, and identifying the limits, in which
the AI application would become the most
effective.
For the world community, the issue of
introducing artificial intelligence in justice
currently remains debatable and is accompanied
by different approaches, from the active use of
artificial intelligence in resolving various
categories of disputes (China) to the
establishment of criminal liability for the use of
artificial intelligence algorithms for predicting
court decisions (France). The national legislation
does not provide for the possibility of replacing
the judge with an algorithm, but it is possible to
discuss the partial involvement of AI in judicial
system.
Following the example of international
organizations, it is advisable to develop
recommendations, domestic standards for the AI
application. Accelerate the development and
adoption of the Code of Ethics for Artificial
Intelligence (including, in Ukraine) and Develop
a strategy to take advantage of this technology.
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