AI Use in Criminal Matters as Permitted Under EU Law and as Needed to Safeguard the Essence of Fundamental Rights

Abstract

In this article we shall attempt to systematically chart the curent AI legislation, as well as the most important proposals for legislation at the level of the EU and to point the clashes and common ground with some of the major aspects present in criminal law that are linked with the protection of the essence of fundamental rights. The image of man as a natural prey to suggestion and influence has made some believe that artificial intelligence represents the proper solution for ensuring not only impartiality in a justice system, but also efficiency. This encouraged a relatively uncomplicated view on the AI applications that would facilitate the work of police and judicial authorities through identification, data management, facial recognition, crime prevention and risk assessment. Underpinning this reassuring hope is the concern for the protection of the essence of fundamental rights. Anchored in the practical examples arriving via the professional experience of magistrates, the use of AI can have adverse effects, undermining fundamental rights, such as the right to non-discrimination, the right to protection of personal data and to a private life, the right to freedom of expression, and the right to a fair trial given the increased risk of reproducing bias and perpetrating discrimination, not to mention the ability of criminals to make use of it for their own illegal purposes. Assumptions on the interaction of AI and the essence of fundamental rights start from the very nature of man and the structure of society and the EU legislator has tried to gather all of these essential elements under the roof of a limited number of policies and legislation instruments.