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Twenty years ago, I was on the Justice millennium task force. We were tasked with making scenarios for all sorts of eventualities in case of the
millennium bug causing various forms of computer failure. For the under-30s:
this bug could not recognize 2000 as a valid year and might stop our computers
from working properly. We ruminated on eventualities: what if the electricity
stops? If the electricity stops, what about the technology that manages the
water table? A serious issue in a country that is largely under sea level. What
branch of justice should be given priority when this happens? We quickly
realized how futile this discussion was. When everything is two feet under
water, giving priority to the family courts or even the juvenile courts was no
longer really an option.
So, twenty years later,
how do courts cope with the emergency of COVID-19? Most courthouses were
closed, except for emergencies. Family cases might not count as emergencies any
time soon. But what if, as happened in the Netherlands, a father cannot
exercise his visiting rights because of COVID-19? My guess is that resolving this
would require a face to face hearing with both parents. Besides, courts are
needed as a check on governments’ use of their emergency powers, too.
Courts are turning
to information technology to keep their business open. Staff and judges may be
able to work from home. Some courts allow filing documents by (more or less
secure) email to keep contaminated paper out of the courts. Various
videoconferencing tools are in use to for hearings when necessary. Courts find
them surprisingly easy to use. The hardest problem to solve is public scrutiny.
Both the Federal courts in the US and the Dutch courts are allowing repeat
users, such as the press, to follow hearings by video. The Dutch Bar Association
urged the judiciary to open up more possibilities for work to continue. Online
tools are becoming the rule, and the case judges have discretion to order face
to face hearings where absolutely necessary. A second category of (somewhat
less) urgent cases has been identified.
How are courts using online tools to cope with the COVID-19 pandemic? On
Sunday, March 29, I asked my Twitter and LinkedIn contacts for information
about online tools courts use during the COVID-19 pandemic. Thank you all for
sending sources of information. I now have some information on 90 geographic
entities, countries, states and territories. They come from the International
Association of Judges – thank you, Paulo Roberto Dornelles Junior, Labor
Judge Member of the International Relations Secretariat of the Brazilian
Magistrates Association for your March
22, 2020 report. And thank you, Norman Meyer, for pointing me to the excellent
web page, by the National Center for State Courts in the US. My third major
source is remotecourts.org.
are some first impressions. Clearly, the pandemic has not hit each of those
entities to the same extent, and this also influences the measures taken. 9
entities appear not to have taken any measures yet: some states in the Mid-West
of the US, some in Africa. Some court systems stay open and leave decisions on
how to proceed to the case judges, taking the local COVID-19 regime into account.
Most courts have cancelled in-person hearings. A number of systems have closed
their courts altogether, except for urgent matters. They postpone cases until
after the crisis where possible.
main interest is in the use of IT to continue providing services. I looked at
remote work for court staff and judges, remote hearings, and digital filing. Remote
work for staff and judges is mentioned by 5 entities. My guess is that quite a
few entities do not think this is worth mentioning, since it is business as
usual. 13 entities say they use remote hearings, mostly for urgent cases only.
They mention Skype for Business, Microsoft Teams, Zoom video and the Vidyo app
as their technologies of choice. 6 entities mention digital filing, which may
include using dedicated email. Here again, where digital filing is not
exceptional, why mention it?
So, it seems courts and courts systems where working remotely is business as usual have few
problems staying open for business. Others now seem to be scrambling to catch
up. I need more information to verify these first impressions, so keep the info
coming in, either at my Twitter account @doryontour or my linkedin page.
suggested instituting an International Women Judges Day. Meanwhile, I guess we
had better make good use of International Women’s day to pay some attention to
women judges. Having been a woman judge for more than thirty years, you can bet
I have stories to tell, some of them even amusing. But that would be misusing this
In the Netherlands,
the first woman judge was appointed in 1947. A hundred years of debate had preceded
her appointment. Those opposed (men) argued that women were much too emotional
for the task of judge. Today, this seems almost amusing, but at the time it
must have been painful for all those women who yearned to put their talents to
good use. In the 1970, my civil procedure professor argued that women make
better judges than men, because they are less confrontational, less threatening
and more conciliatory.
Now that women judges have a numerical majority in the Dutch courts, two of my
students at the Amsterdam University of Applied Sciences wanted to research the
matter of women judges’ emotionality. They interviewed (1) male convicts about
being convicted by a woman judge, (2) judges and lawyers about differences in
emotionality among judges, and (3) lawyers and judges about appealing to women
judges’ sentiment in the courtroom.
Almost none of the
convicted men could recall whether they had been judged by a man or a woman,
and almost none of them objected to being judged by a woman, except those from
Moroccan descent. Some of their lawyers guessed this may be because they
appeared to have problems with authority generally.
politician claimed that, since there were so many women judges, sanctions for
violent crime had gone down. Both judges and lawyers, irrespective of their gender,
agreed there was no noticeable difference in emotionality between women and men
judges. Nor did they notice any difference in the sanctions. After
all, there are guidelines for sanctions to be applied for most crimes.
A prominent male lawyer
had boasted to the press that he could soften women judges with his suave tone
of voice, the blink of an eye or a joke. The judges, when interviewed about
this by my students, considered this unprofessional, exaggerated, very wrong, downright
silly, ineffective, and an overestimation of his personal charm.
This may close the
debate on women judges’ emotionality, but a new discussion is on the rise. Is
the Netherlands judiciary becoming too “feminine”? Selection profiles for
judges include, besides legal skills like argumentation and deciding disputes, competency
in strong analytical skills, listening, persuasion, organization, cooperation, self-confidence,
authenticity and flexibility capacity to learn, reflect and decide. I do not
think those are specifically feminine skills. And is the judiciary losing some
of its authority? Surveys show that confidence in the judiciary in the
Netherlands has been going steadily up in the past years.
Judicial Integrity, IT and AI in Doha, Qatar
On 25 and 26 February 2020, the Global Judicial Integrity Network held its second High Level
Meeting, in Doha, Qatar. The overarching topic is always increasing judicial integrity,
but this time the two big themes were gender diversity and information
technology. My contribution consisted of a plenary panel discussion on
information technology and artificial intelligence. Here is a summary of my
contribution to the discussion.
to right: prof. Karen Yeung University of Birmingham, judge Madan Lokur from
India, panel chair Roberta Solis, Judicial Integrity team leader UNODC, myself, Judge Victor
Momotov of the Russian Federation, Judge Ju Yeon Lee, from the Republic of
Korea. (thanks to Judge Kees Sterk for the picture)
Roberta Solis sent
us all questions beforehand.
My first question
was on experience with in house IT development in the Netherlands.
Like most other
judiciaries, the NL judiciary uses many different kinds of information
office technology, multiple web sites with information, news and published case
law (50.000+ judgments annually), court management tools, an intranet, email,
and some e-filing and digital procedures. All this is managed by the judiciary’s
own IT organization, under the Council for the Judiciary of the Netherlands.
An important reason
for choosing in house development is continuity in knowledge: keeping the
knowledge that is developed inside the judiciary. But there is a more important
reason that is not always recognized. IT has reached a level of development
that includes all work processes. It is no longer a tool, it is becoming an
environment. And since it includes the primary, judicial work processes, the
choice was to do that under judicial control.
The way to achieve
this was to mix in house expertise with individually contracted specialist experts.
The methodology of choice was agile product development, with judges as product
owners. This ensured strong judicial involvement in the software development.
Some lessons to
take away from this experience so far:
Development is not
the most difficult issue. The most difficult issue is governance: changing work
processes and implementing digital procedures require strong decision making
processes geared for innovation. Most judiciaries are geared to be production
organizations: they process cases. For going digital, this governance setup
needs to change.
There are also some
options for innovation to be gleaned from the experience in the Netherlands. The
most important variables are the need for changes in the regulation and the length
of the procedure to be digitalized.
1 simple, short
term processes can be replaced in one operation if they do not require changing
2 more complex,
longer running processes should be changed step by step, especially if they
also require changes in regulation
3 setting up an entirely
new process avoids the risks involved in option 2
4 setting up an
entirely new institution creates the possibility to design approaches that
leverage the power of going digital.
question for me was about the CEPEJ charter for ethical use of artificial
intelligence (AI) in the administration
CEPEJ is the
Council of Europe’s Commission for the Efficiency of Justice. CEPEJ decided to draw
up the Ethical Principles in order to ensure responsible use of artificial
intelligence in compliance with the European Convention on Human Rights and the
Convention on the Protection of Personal Data, to help improve the
predictability of the application of the law and the consistency of court
decisions and to prevent discrimination.
In June 2018, CEPEJ held a session with
experts on the workings of courts, legal experts and experts on the anthropological
and philosophical aspects of the emergence
of artificial intelligence. CEPEJ also conducted a survey of the state of use of
AI in the judiciaries, which showed that that use is still very low.
reports on operating characteristics, legal reasoning, explaining judges’
behavior in retrospect, data protection, and predictive justice tools, that are
included in the final reports as annexes.
The 5 principles in
the final document are:
for fundamental human rights
impartiality and fairness
Principles, therefore, also pose some new challenges for judiciaries.
The Principles need
to be operationalized, in regulation as well as organization. This is going to
be a big challenge for judiciaries, as they will need to safeguard the
integrity of their own data and their information systems. They also need to make
their information machine readable in order for AI to make more effective use