Predictability and reuse of judicial decisions

The digital transformation is, without a doubt, one of the main challenges facing any public or private organization that intends to carry out its functions effectively in the current technological context. For public entities this requirement becomes an obligation from the legal perspective, to the extent that the constitutional mandate of effectiveness constitutes a manifestation of the principle of good administration.

In the case of the Administration of Justice, we face a real collective challenge since its proper functioning is an elementary condition for the existence of a true rule of law. However, unlike what happens in other areas of the public sector - perhaps, for example, the tax - there is a social perception that adaptation to technological challenges is not taking place as quickly as social evolution demands.

The complete robotization of the judicial decision does not seem very feasible in the short and medium term, despite some emerging initiatives in relation to the use of artificial intelligence in this field whose effectiveness is not always demonstrated and, on occasion, has been the subject of relevant responses in particular as regards the evaluation of the risks and the ethical challenges involved. However, in the context of legaltech services, commercial initiatives related to the use of technology to facilitate the predictability of judicial decisions are increasing in the legal field. These are projects that, ultimately, are based on the reuse of documents and, in particular, judicial decisions.

In this regard, in France there has been an important controversy at the social and political level that has culminated in a reform of the Criminal Code that prohibits the evaluation, analysis, comparison or prediction when the treatment allows the holder of the judicial body to be identified. In Spain, the measures related to anonymization have currently only been considered for the parties to the process, and there is a consolidated practice of eliminating their real identity before publishing them. However, as can be seen in the official search engine of the Judicial Documentation Center (CENDOJ), judicial decisions are nevertheless accessible with full identification of the natural persons holding the jurisdictional body.

However, beyond the difficulties related to the protection of the personal data of the parties to the process, there are other restrictions that hinder an appropriate treatment of judicial decisions in order to carry out advanced analyses that could be taking as an starting point for consistent predictive functionalities:

• First, the official documentary fund is not exhaustive, since only the complete series of Supreme Court decisions are incorporated and, likewise, a selection - more or less exhaustive- of cases of other judicial bodies, mainly the Spanish National Court, the Superior Courts of Justice and the Provincial Courts.
• Second, according to the legal notice that appears when accessing the search engine, the use of the resolutions is limited to mere knowledge and consultation of the decision criteria of the Courts, in compliance with the provisions of the Organic Law of the Judiciary. However, “The reuse of this information for the elaboration of databases or for commercial purposes must follow the procedure and conditions established by the CGPJ through its Judicial Documentation Centre”.
• Thirdly, access for reuse purposes is subject to economic conditions designed to facilitate downloading and access for commercial purposes by legal publishers. However, such conditions hinder mere treatment consisting of a massive analysis of judicial decisions and, therefore, become a major obstacle to carrying out the procedures required by artificial intelligence.

Beyond such conditions, the reuse of judgments and other judicial resolutions in Spain was the subject of an important legal discussion that still remains to be closed. Indeed, the Regulation approved at the time by the General Council of the Judiciary was annulled by the Supreme Court through a judgment that did not go into substantive aspects. It was limited to consider the appeal for a mere competence issue in understanding that the Council of Ministers should be the body responsible for its approval. However, to date, no other regulatory initiative has been known to address the regulation of the singularities of the reuse of judicial decisions.

It is important to highlight that judicial bodies are subject exclusively to the rule of Law according to the Constitutional Text and, therefore, there is a reinforced public interest in facilitating mechanisms for monitoring their additional decisions to the institutional system of resources that, as is known, is subject to important legal limitations -not all decisions can be appealed- and economic imitations-the expenses to hire professionals and the imposition of costs are two obvious examples-. In this regard, on the one hand, transparency and access to information are legally recognized as tools that serve as an indirect control mechanism for certain actions, procedures and documents, although their scope is limited to certain moments - public visits - and the concurrence of certain requirements –be part of the process-. And, on the other hand, the greater opening of judicial decisions from the perspective of their reuse could facilitate their predictability and, in this way, strengthen legal certainty apart from any other commercial purpose.

Perhaps the future transposition of Directive 2019/1024 is a propitious opportunity to face this unfinished debate and, thus, lay the legal foundations that provide security to a sector in need of clear regulatory rules. In this regard, these rules should not only aim to facilitate reuse in the editorial field, but also to boost the social mechanisms of informal control based on Open Government and, in particular, the co-creation of digital public services by society.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.