Is revision of the council of Europe guidelines on electronic evidence already needed?

Remigijus Jokubauskas,Marek Świerczyński

doi:10.36633/ulr.525

Abstract

On 30 January 2019 the Council of Europe adopted the first guidelines on electronic evidence in civil and administrative proceedings (hereinafter also ‘Guidelines’).1 The authors question if the Guidelines already require some revisions. They also consider, whether the revised Guidelines should provide more practical advice to courts and legal practitioners related to electronic evidence. Several aspects have been identified regarding the use of the Guidelines by the courts in particular with the regard to the rapid development of online dispute resolutions systems and use of artificial intelligence algorithms in judicial systems. Both authors took an active part in the preparatory works of the Guidelines and believe it is in the interest of justice that the Guidelines should be regularly updated addressing and reflecting technological developments, new business models and evolving case-law.

Highlights

The Council of Europe adopted the Guidelines on electronic evidence in civil and administrative law only recently, on 30 January 2019
A gap still exists in both law and judicial practice regarding the key technological principles of dealing with electronic evidence, in particular, when we speak about the use of cloud computing, blockchain or artificial intelligence (AI) algorithms in securing, submitting and analysing the electronic evidence.[26]
The Guidelines adopted by the Council of Europe is the first international document which explains how courts should handle electronic evidence in civil and administrative proceedings

Summary

Introduction

The Council of Europe adopted the Guidelines on electronic evidence in civil and administrative law only recently, on 30 January 2019. Except the Guidelines only a few legal documents which have been adopted to facilitate the handling of electronic evidence in civil and administrative proceedings at international, European and national level so far.[25] A gap still exists in both law and judicial practice regarding the key technological principles of dealing with electronic evidence, in particular, when we speak about the use of cloud computing, blockchain or AI algorithms in securing, submitting and analysing the electronic evidence.[26] That is why the need for revision of the Guidelines is particular importance They should be adapted to the current stage of development of court digitalisation. If the authentication is not sufficient, expertise may be relevant

Possible new sections to be added to the guidelines

Conclusions