New Technologies in International Law / Tymofeyeva, Crhák et al.

1.3 Digital Transformation & Courts’ Output & Access to justice Article 6 (1) of the European Convention on Human Rights mentioned the right to a fair trial, provided that States shall set up a sufficient network of courts so that citizens can easily exercise the prerogatives they derive from this provision. Access to justice (accès à la justice) is “All the legal and organisational factors and resources (e.g. legal aid, court fees, information) affecting the availability and effectiveness of judicial services. In the context of cyber justice, this concept includes means of accessing the law (online information on one’s rights and on the status of court proceedings, publication of case law) and accessing dispute settlement procedures (online granting of legal aid, referral to a court or mediation service)”. However, some may ask to which extent the DT would affect access to justice and the rule of law? Also, how could this innovation marginalize and exclude some litigants (without technology) from accessing it? According to the rule of law, the principles of Article 5 (the right to liberty and security guaranteed by a judge) and Article 6 of the European Convention on Human Rights (the right to a fair trial) must be protected at any time, especially during a crisis. The continuity of the functioning of the judicial system and providing its services must be ensured even in times of crisis, through alternative means such as online services or by enhancing access to information through court websites and other means of communication such as telephone, e-mail, and others. In other words, the crisis requires an immediate and urgent response. However, any response to the crisis must be based strictly on the principles of the rule of law and the respect and protection of human rights. Emergency measures must respect the principles of legality, legal security and proportionality, and judicial oversight must be possible in a timely manner. Special attention should also be given to vulnerable groups who are likely to suffer from this situation. 2. The effect of DT on Access to Justice In accordance with Opinion No. 14 (2011), of the CCJE 148 “ICT should be a tool or means to improve the administration of justice, to facilitate the user’s access to the courts and to reinforce the safeguards laid down in Article (6) ECHR: access to justice, impartiality, independence of the judge, fairness and reasonable duration of proceedings” and that its introduction “in courts in Europe should not compromise the human and symbolic faces of justice”.

148 ‘Consultative Council of European Judges’ ( Council of Europe portal ) accessed 19 January 2022.

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