Author: Evangelos Ekmektsoglou, Visiting PhD Candidate in Law at the Assisting Living and Learning (ALL) Institute, Maynooth University and Aristotle University of Thessaloniki
Access to justice, meaning the ability to seek remedy through an independent judiciary in an institution of justice is vital for everyone, as it allows to enforce all human rights, such as the right to employment or the right to education. However, it is crucial especially for persons with disabilities (and other marginalized groups), as they regularly face exclusion and discrimination in all areas of social life and as such, their rights are not always guaranteed.
Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD), which constitutes the global standard on disability rights, requires the States Parties to take measures in order to ensure that persons with disabilities have “effective access to justice[…] on an equal basis with others”.
I argue that some of these measures can stem from the digitalization of the judicial systems across the globe. Indeed, the COVID-19 pandemic dramatically increased the use and need for digital services, while the use of Artificial Intelligence (AI) technology has also become widespread in everyday life, posing its own challenges to fundamental rights.
Simultaneously, the CRPD Committee (which is the quasi-judiciary body monitoring the effective implementation of the CRPD) has interpreted Article 13 in a way that leads to conclude that digital courts, i.e. online platforms designed to adjudicate cases without the need to be physically present in a courtroom, are in line with the CRPD. Digital courts help break the physical and attitudinal barriers that persons with disabilities face in the field of justice (even though the Committee does not mention digital courts per se). Since the EU is a party of the CRPD, this interpretation from the CRPD Committee can inform future EU actions on the matter.
Within this context, this post will briefly present some of the initiatives that the EU has taken in order to support the digitalisation of justice systems in Europe and what this effort contributes to persons with disabilities’ right to access justice, while also mentioning some examples of assistive technologies that implement said right in practice.
Since 2009, the European Commission has been publishing e-Justice strategies and action plans on a consistent basis, with the latest being presented for the 2024-2028 period. One of the principles underlying the strategy is the creation of person-centered systems, meaning that digitalization of justice efforts should prioritize creating accessible and transparent services that are tailored to the individual needs, which is key given the variety of existing disabilities.
Furthermore, in the field of EU secondary law, there are a few instruments referring to persons with disabilities in the context of digitalisation of justice. More specifically, the Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters mentions that the relevant Information Technology (IT) systems should fulfill the accessibility requirements imposed by other Directives (the Web Accessibility Directive and the European Accessibility Act), to ensure the effective participation of persons with disabilities in the judicial proceedings. Similarly, the Directive on combating violence against women and domestic violence focuses, inter alia, on women with disabilities and mentions that the use of information and communication technologies is vital for the latter to submit their complaints and as such, they should be accessible and supportive of their needs.
Moreover, the same concept of person-centered systems can be found in the Victims’ Rights Directive, which emphasizes the obligation of Member States on providing accessible information to victims with disabilities. In addition, Member States should take into account the difficulties in communication and understanding that persons with disabilities might have. Recent amendment proposals have also suggested the need to include electronic means towards the realization of the right to access to information.
Lastly, Article 4 of the e-Codex Regulation on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters states that the right to effective access to justice should not be compromised through the application of the Regulation. Even though persons with disabilities are not explicitly mentioned, there is a reference to the non-discrimination principle in the same Article. This can lead to the assumption that the group also falls under the protective scope of this provision, since the principle extends to disability, according to Article 19 of the Treaty on the Functioning of the EU.
However, the question is: how is this legal landscape applied in practice? There are indeed some assistive technologies that can be very helpful in achieving that purpose.
The first of these means is videoconferencing tools. These tools allow everyone (judges, lawyers, parties etc.) to participate remotely in a proceeding or a hearing. Therefore, persons with disabilities have the opportunity to exercise their right to access justice by avoiding the often inaccessible physical infrastructure of the courts. Multiple applications like Zoom, Microsoft Teams and Google Meet (even though not having the same accessibility standards and with Zoom considered the best amongst the three in that regard) have already provided alternatives for realizing online meetings since the pandemic.
Secondly, the use of AI tools has increased in recent years, including in the area of justice. Machine learning and AI can aid persons with disabilities to communicate and seek help through apps that focus on speech-to-text and captioning. Additionally, given the complexity of legal documents, AI has the potential to create “easy-to-read” formats which respond to the specific needs of persons with intellectual or developmental disabilities. However, AI tools should stay complementary to the work of legal professionals, as it is noted that AI generated decisions can lack impartiality, when it comes, for example, to guardianship regimes for persons with mental disabilities.
Finally, new emerging technologies like virtual reality systems (VR) can also bring certain advantages. These systems can contribute to creating an environment that is more suitable to persons with autism or anxiety disorders compared to the intimidating nature of the physical courtroom.
In conclusion, it is evident that the EU has taken decisive initiatives to promote the digitalisation of justice, having a positive impact on the enjoyment of the right to access justice by persons with disabilities. The digital tools mentioned above, provided that their use respects fundamental rights, play a crucial role in eliminating the barriers that they face, guaranteeing their inclusion throughout the proceedings, as it is required by the CRPD.
I would like to thank Professor of Law and Co-Director of the ALL Institute, Professor Delia Ferri for her valuable review and comments of this piece
