The justice system finds itself in an age of digital upheaval. It is both an active shaper of as well as an object to be shaped by digital transformation: whereas digital matters are increasingly becoming an object of court proceedings, the order of the day is also digitalisation of court proceedings themselves. On top of this, the next technological disruption is already on the horizon in the form of the potential possibilities to deploy artificial intelligence.
First, the increasing number of complex matters from the digital world confronts the justice system directly with complex questions arising from the tensions between law and technology. The administrative court system plays a special interface role here in the field of digital administration. Unlike the legislature, which normally issues abstract general regulations, the judiciary has to make specific decisions in proceedings. At the same time, actual complexities and anachronistic regulations should not hollow out of the effectiveness of legal protection and the promise to do justice. Consequently, it is a primary research goal of the project to investigate to what extent the demands on the judiciary as the guarantor of the rule of law will change in digital society.
Furthermore, various projects of legislative reform of the federal government and federal states are underway under the banner of “e-Justice” and “electronic legal transactions”, aimed at bringing the judiciary itself into the digital age. Instead of a statement of claim in paper form, the plaintiff in civil proceedings can now, for example, transmit a (qualified signed) e-mail to the court (cf. § 130a German Civil Procedure Code [ZPO]). Furthermore, e-files will now also make their entry into courtrooms (cf. § 298a ZPO). However, the legislature has so far merely permitted processes of the “analogue justice system” to now also be conducted electronically. But to make full use of the potential of digital justice through reforms, the federal government and federal states would in general have to deal with with the existing work methods and processes in judicial proceedings. Comprehensive analysis appears to however be blocked by the complexity of the legal framework. Consequently, a second research objective is to draw a more precise delimitation of the regulatory room for manoeuvre in further reform of judicial proceedings.
Since (personal) data are part of any digital court proceeding, data protection law is also of particular relevance. Its legal regime has proven to be particularly complex for justice system. The GDPR admittedly covers the work of the courts and other judicial authorities in general, but at the same time includes numerous privileges in favour of judicial independence (cf. recital 20 GDPR). The field of criminal justice is completely excluded from the regulatory framework (cf. Art. 2 [2d] GDPR). The Data Protection Law Enforcement Directive constitutes the EU law foundation for data protection here. The findings that the research project will produce in this context could make a direct contribution to laying the normative foundation for further digital transformation of the judiciary.
Prof. Dr. Mario Martini