Equality Of Arms Research Articles

THE EXPLANATIONS ONE NEEDS FOR THE EXPLANATIONS ONE GIVES—THE NECESSITY OF EXPLAINABLE AI (XAI) FOR CAUSAL EXPLANATIONS OF AI-RELATED HARM:DECONSTRUCTING THE ‘REFUGE OF IGNORANCE’ IN THE EU’S AI LIABILITY REGULATION

This paper examines how explanations related to the adverse outcomes of Artificial Intelligence (AI) contribute to the development of causal evidentiary explanations in disputes surrounding AI liability. The study employs a dual approach: first, it analyzes the emerging global caselaw in the field of AI liability, seeking to discern prevailing trends regarding the evidence and explanations considered essential for the fair resolution of disputes. Against the backdrop of those trends, the paper evaluates the upcoming legislation in the European Union (EU) concerning AI liability, namely the AI Liability Directive (AILD) and Revised Product Liability Directive (R-PLD). The objective is to ascertain whether the systems of evidence and procedural rights outlined in this legislation, particularly the right to request the disclosure of evidence, enable litigants to adequately understand the causality underlying AI-related harms. Moreover, the paper seeks o determine if litigants can effectively express their views before dispute-resolution authorities based on that understanding. An examination of the AILD and R-PLD reveals that their evidence systems primarily support ad hoc explanations, allowing litigants and courts to assess the extent of the defendants' compliance with the standards enshrined in regulatory instruments, such as the AI Act. However, the paper contends that, beyond ad hoc explanations, achieving fair resolution in AI liability disputes necessitates post-hoc explanations. These should be directed at unveiling the functionalities of AI systems and the rationale behind harmful automated decisions. The paper thus suggests that ‘full’ explainable AI (XAI) that is, both ad hoc and post hoc, is necessary so that the constitutional requirements associated with the right to a fair trial (access to courts, equality of arms, contradictory debate) can be effectively met. Keywords: AI, Causation, Explainability, Fair Trial, Procedural Fairness, Equality of Arms, Effective Participation, AI liability, Product Liability, AI Act, AI Liability Directive, Product Liability Directive

Electronic Administrative Judicial Procedure of Ukraine and the Right to Judicial Protection: Problems of Legal Regulation and Practical Issues

The article deals with certain problems of legal regulation of electronic administrative judicial procedure in the context of the realization of the right to judicial protection. The methodological basis of a scientific article is a set of philosophical, general and special scientific methods. It is indicated that electronic administrative judicial procedure should be attributed to the components of electronic governance. It has been established that the right to appeal to an administrative court and ways to protect violated rights cannot be limited when submitting and considering electronic documents, since the lack of such an opportunity leads to a violation of fundamental human rights, court practice in this matter is given. It has been established that it is the application of a specific method of protecting participants in public law relations of a violated or denied right that is the result of the activity and effectiveness of the legal mechanism for protecting rights when using information and communication technologies in administrative courts. Revealed that these rights protection mechanisms should be applied on the basis of the rule of law, accessibility and transparency, impartiality and independence, including the principles of oral hearing and equality of arms. The analysis of the concepts "electronic justice", "electronic court" in the scientific literature, national and international legal documents is carried out. The essence of "electronic administrative judicial procedure", its elements, stages of implementation in practice are disclosed. Separate directions for improving the legal regulation of electronic administrative judicial procedure regarding the implementation of the right to judicial protection are proposed.

Absence of an Oral Hearing in Administrative Disputes:

Purpose: The right to an oral hearing is an essential element of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This is particularly emphasised in administrative procedures where the parties are in a hierarchical relationship. The absence of an oral hearing can significantly limit a party’s right to a fair trial. Therefore, this paper aims to explore the positive law and state of play in the Republic of Slovenia and the Republic of Croatia regarding the right to an oral hearing. The purpose of this paper is to analyse relevant legislation and case law with the goal of proposing future legislation that better aligns with effective legal protection.Design/Methodology/Approach: Desk research was conducted to analyse current legal solutions and case law using sociological research methods. These involved analysing domestic and international legal texts and reviewing the rules governing national administrative procedures in the countries included in the research, as well as against decisions of the European Court of Human Rights. In addition, the research used a combination of primary and secondary data sources.Findings: Administrative courts should prioritise procedural justice and equality of arms, even when there is no clear need for oral hearings, especially if one of the parties requests to appear before the court. To minimise damaging discretion, both parties should consent to relinquishing the right to an oral hearing, which should be mandatory by default.Academic contribution to the field: The primary contribution of this paper lies in its de lege ferenda suggestions regarding the right to an oral hearing, which could potentially enhance the protection of human rights in relation to a fair trial in both administrative disputes and administrative procedures.Originality/Value: This research is original as it presents a comparative analysis of administrative procedure and disputes in selected Member States. To the best of the author’s knowledge, no such comparative study has been conducted before. The findings of this research could have significant value as they highlight the need for improving procedural justice and equality of arms in ensuring a fair trial in administrative disputes.
 

The Characteristics of the Examination of the Testimony of a Witness Interrogated While Keeping the True Identity Secret

The article is devoted to urgent issues of law enforcement activities related to the study of the testimony of operational origin received from witnesses. At the same time, true information about the identity of such witnesses constitutes a state secret. This circumstance, as shown by an empirical analysis of judicial practice, puts the defense side before the need to treat such testimony with sufficient caution. As a result of the analysis of legal prescription that fi x the procedure for examining the testimony received from secret witnesses, the author comes to the conclusion that, by and large, they contain only some kind of formal access possibility for the defense to their research, leaving the decision of this issue exclusively to the court. The Resolution of the Plenum of the Supreme Court of the Russian Federation «On the practice of applying the law in the consideration of criminal cases in the court of first instance (general procedure of court proceedings) does not put a final point in the resolution of the issues. The explanations set out therein, contrary to the principles of adversarial and equality of arms, do not allow the defense to conduct a full examination of the testimony of anonymous witnesses. Moreover, the criminal procedural legislation does not contain a special basis justifying the presence of a real threat to the safety of a witness, if they assist the bodies of inquiry in the implementation of operational-search activities. The author formulated proposals aimed at solving these problems. It is necessary to create conditions in the courts in which it is possible to keep secret the identity of the confidential witness and take into account the interests of the parties. It is proposed to expand the list of grounds set out in the Code of Criminal Procedure of the Russian Federation as an additional special ground allowing for a reasoned approach to providing an opportunity to witnesses who have previously provided assistance to bodies of inquiry in the conduct of operational activities to carry out the security measures guaranteed by criminal procedure law.

A new extraordinary means of appeal in the Polish criminal procedure: the basic principles of a fair trial and a complaint against a cassatory judgment

Background: The main purpose of this study is to present and evaluate a new, extraordinary means of appeal in Polish criminal procedure – a complaint against cassatory judgment of the appellate court from the point of view of principles of criminal proceedings. This includes hearing the case within a reasonable time, the right of defence, two-instance proceedings, and equality of arms in complaint proceedings. Methods: This study draws on comprehensive analyses of the provisions of the Polish Code of Criminal Procedure, partly based on case research, and comparing effects of these analyses with both the Polish constitutional standard and the jurisprudence of the European Court of Human Rights (ECHR). Results: Complaint proceedings comply with the main requirements of a fair trial. Conclusions: Certain limitations on the right of the accused in the discussed proceedings are fully justified by their special features and are proportionate. This conclusion applies to the time-limit for submitting the complaint, the requirement to bring it only through the assistance of a defence counsel, and also to the way of examination of the complaint by the Supreme Court in writing at the closed session. All these solutions constitute only permissible, proportionate restrictions of the indicated principles. This proportionality results primarily from weighing the benefits of the complaint proceedings: limitations of cassatory adjudication in genere, respect for the appeal model of appellate proceedings, and maintaining uniformity of interpretation of narrowly defined grounds for cassatory adjudication.

About Legal Policy in the Field of Formation and Implementation Online Dispute Resolution Mechanisms in Civil and Administrative Court Proceedings

The article analyzes the legal policy of the countries of the Council of Europe in the field of the formation and subsequent implementation of new mechanisms for online dispute resolution in civil and administrative proceedings. In this regard, the guidelines for the use of such mechanisms (which are set out in the relevant Recommendations of the Committee of Ministers of the Council of Europe) are discussed in detail in the field of access to justice, equality of arms, evidence and evidence, trial and informed decision, as well as the right to review it. ... Attention is focused on the need to ensure the compatibility of such mechanisms with the key principles of a fair trial and effective remedies set out in the case law of the European Court of Human Rights, including the principles of publicity, transparency, directness, oral hearing and equality of persons involved in a case.A separate place is given to the problem of using online dispute resolution mechanisms in Russian civil and administrative proceedings. It is noted that today the domestic legislator, as part of the development of its own legal policy agenda, increasingly integrates innovative digital communication methods into the activities of the subjects of procedural legal relations. In particular, in the near future, along with video conferencing, the legislator will allow courts of general and arbitration jurisdiction to use web conferencing as an authentic technology for organizing online meetings and collaboration in real time via the Internet. All this creates a fertile ground for borrowing the positive world experience of introducing the latest mechanisms for online resolution of civil and administrative cases by the justice authorities, taking into account the inviolability of high standards of a fair trial.

ПРИНЦИП ПРАВА БУТИ ПОЧУТИМ (RIGHT TO BE HEARD) У ЦИВІЛЬНОМУ СУДОЧИНСТВІ: МОДЕЛЬНІ ЄВРОПЕЙСЬКІ ПРАВИЛА ЦИВІЛЬНОГО ПРОЦЕСУ ELI/UNIDROIT, ПРАКТИКА ЄСПЛ І НАЦІОНАЛЬНИЙ КОНТЕКСТ

The article addresses the right to be heard as one of the new principles of civil procedure being analyzed through the prism of the provisions of the ELI/UNIDROIT Model European Rules of Civil Procedure and para. 1 of art. 6 of the European Convention on Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. The paper highlights the problems of implementation of this principle at the national level. Within the framework of the ELI/UNIDROIT Model European Rules of Civil Procedure, the principle of the right to be heard includes: a) a fair opportunity to present claim and defense in court (Rule 11); b) the reasoned judgments, relied on the basis of the case file and the legal issues which the parties were able to comment on (Rule 12); c) the prohibition on the court communicating with a party in the absence of other party (Rule 13). Based on the analysis of the ELI / UNIDROIT Model European Rules of Civil Procedure and the case law of the ECtHR, the author advocates the view, according to which, the implementation of the principle of the right to be heard calls for the existence of a number of procedural guarantees of 'fair hearing' (para. 1 art. 6 of the ECHR). It is concluded that in modern conditions the principle of the right to be heard in its legal content is reduced to the requirement to provide a party to the proceedings the opportunity to bring to court their claims and objections, to effectively present their legal position before the court on equal terms with those given to the other party, as well as to obtain a reasoned court judgment. The implementation of this principle is associated with three groups of guarantees: a) guarantees that are prerequisites for the exercise of the right to be heard (proper notification of the person about the date, time and place of the court hearing); b) guarantees that constitute the core of the right to be heard and are implemented during the trial (oral hearing; opportunity to participate in the proceedings; the principle of 'equality of arms' and adversarial process); c) guarantees that are implemented after consideration of the case (a reasoned court judgment).

Suspect’s access to a lawyer at an early stage of criminal proceedings in view the case-law of the European Court of Human Rights

Access to a lawyer at the pre-trial stage of proceedings is an essential component of the right to defense in criminal proceedings and the right to a fair trial. Access to a lawyer enables the accused to make a good decision for his her defence. At present, there is no doubt that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, ensures equality of arms and provides a fundamental safeguard against coercion. This study analyses a suspect’s right to access to a lawyer at the initial stage of criminal proceedings in the case law of the European Court of Human Rights. The first part of the article provides an analysis of the understanding of the right to a lawyer at the pre-trial stage as applied by the ECtHR prior to the Salduz case. This period in the ECtHR’s case law was characterized by a lack of precision as to the temporal limits of the right laid down in Article 6 § 3 (c) of the ECHR. The next part shows the changes brought about by the judgment in the Salduz case regarding the protection of suspects and ensuring their right to counsel. It is argued that the Salduz doctrine not only covered the suspect’s access to a lawyer at the initial stage of the pre-trial proceedings, but also stressed the obligation to inform the suspect of his or her rights, including the right to remain silent. An important element of the Salduz doctrine was the possibility to eliminate evidence obtained during an interrogation conducted at an early stage of the pre-trial proceedings in the absence of a defense counsel. Further, the paper argues that the standard set out in the judgment in the Salduz v. Turkey case was confirmed in a number of rulings. The fourth part of the paper draws attention to the erosion of the Salduz standard that occurred with the judgment in the Ibrahim and Others v. the UK case. The article also brings into focus recent judgments of the ECtHR which have reinforced the view expressed in the Ibrahim and Others v. the UK case concerning a test of fairness of a trial as whole. It is underlined in the conclusions that recent ECtHR’s case law does not provide any cause for optimism regarding legal assistance at an early stage of criminal proceedings.

Issues of implementation of equality of arms principle in case of declaring the applied law unconstitutional

The Article considers the issue of ensuring the constitutional principle of equality of litigants before the law and the court during review of the judgement in view of the exceptional circumstances after consideration of the case by the Constitutional Court. Based on the study of legal nature of such consequences of nullity of the law as pro futuro, ex nunc, ex tunc, the risks of violation of the constitutional right of a person to judicial protection shall be established. The aim of the Article is to detect the objective demonstration of the constitutional principle of equality of litigants before the law and the court. The methods of the study: system, dialectical, integrative, interdisciplinary and scientific methods applied to detect the interrelation between the constitutional principle of equality of arms and its practical demonstration in litigation process. The main results of the study. Two components affecting the efficiency of protection of such right have been established: future effect of the judgement of the Constitutional Court of Ukraine and impossibility to consider the application in view of exceptional circumstances if before appeal to the Constitutional Court of Ukraine a person’s claim was dismissed in full under the applicable laws and was further declared unconstitutional by the Constitutional Court. The erroneous legal position of the supreme court in the system of the judiciary of Ukraine was proved in terms of the impossibility of initiating proceeding in exceptional circumstances after delivery of the judgement of the Constitutional Court of Ukraine due to the fact that the person’s claim had previously been dismissed and such a judgement does not provide for its enforcement. This conclusion deprives a person of the right to a final trial at the national level in accordance with the procedure of applying to the court (Articles 8, 24, 55, paragraph 1 Part 2 of Article 129 of the Constitution of Ukraine). It is proposed to develop a special law establishing the grounds and procedure for compensation by the state of moral and financial damages caused by the law recognized as the unconstitutional one.

“Equality of arms” in criminal procedure in the context of the right to a fair trial

The level of realization of the right to a fair trial is one of the crucial indicators of democracy in any state. In order to ensure this right, all the minimum standards deriving from it must be clearly understood by law enforcement agencies and their practice must meet these standards. As equality of arms, the right to a fair trial, is not directly enshrined in the text of Article 6 of the European Convention on Human Rights (hereafter - the Convention) and is of implicit character; the issues like its essence, content and the way it should manifest in practice are open for discussion. For this reason, the focus on those issues is highly relevant. The aim of this article is, with reference to the case law of the European Court of Human Rights (hereafter - ECHR) and the modern doctrine based on this right, to explain the role of this principle and the essence of its mutual relations with the other elements of the right to a fair trial. Selected case law of ECHR bears great interest compared with other decisions and is discussed in the form of empirical materials of the study. From the doctrinal materials, interpretation of Article 6 of the Convention and theoretical sources related to the European standards in the criminal procedure are also analyzed. The article exercises methods of dialectical comprehension; they are determinism, induction, deduction, case studies and methods of law interpretation. As a result of the study, a unique doctrinal commentary has been obtained in the context of adversariality and impartial and independent court principles of the concept of equality of arms, as well as, interaction of the minimum rights of persons subject to criminal prosecution, guaranteed by the Convention.

Consistency and Law Comparison in Consumer Protection Law Design in the Light of the Socially Responsible Market Economy Approach

Social justice is an essential issue in the development of Indonesian law of the 21st century. Consumer protection is an aspect of social justice because it maintains "equality of arms" between suppliers and consumers. The more technological developments are integrated into social life and thus also into the business competition process, the greater the importance of consumer protection becomes, because the use of disruptive technologies, for example artificial intelligence, can shift the balance between providers and consumers in favour of economically strong providers. This will lead to the need to redefine the position of consumer protection in the Indonesian legal system. Law No. 8/1999 on Consumer Protection in its current form follows a rather ambiguous systematic approach by not clearly distinguishing between individual and social-functional protection purposes of consumer protection. The article argues for creating the methodological framework for a possible revision of the Indonesian consumer protection law with a strong integration of cultural-empirical and scientific-systematic viewpoints.

Seeking Compatibility in Preventing Crime with Artificial Intelligence and Ensuring a Fair Trial

The justice system is increasingly reliant on new technologies such as artificial intelligence (AI). In the field of criminal law this also extends to the methods utilized by police for preventing crime. Though policing is not explicitly covered by Article 6 of the European Convention of Human Rights, this article will demonstrate that there can be adverse effects of policing on fair trial rights and make the analogy to criminal investigations as a recognized pre-trial process. Specifically, it will argue that policing that relies on AI to predict crime has direct effects on fair trial processes such as the equality of arms, the presumption of innocence, and the right to confront the evidence produced against a defendant. It will conclude by challenging the notion that AI is always an appropriate tool for legal processes.

The oath of a judge – oath of office and judicial symbol

The oath of a judge as an oath of office and as an element of judicial symbolism is considered in the article. The oath of a judge belongs to the categories of oaths of office, taken by an official upon taking office. At the same time, it belongs to the judicial oaths used in the justice process and is an element of judicial symbols. The oath of a judge as an oath of office symbolizes the endowment of a judge as an official by the state (judicial) power, the moment of his acquisition of powers (it is the inauguration ceremony), and the duty of a judge as an official to perform his duties properly. The oath of a judge as a judicial symbol represents a public and solemn obligation of the judge to exercise a fair trial in all its manifestations, including: independence and impartiality of the court, adversarial proceedings, equality of arms, and the rule of law. The judge takes the oath in a solemn atmosphere in the presence of senior officials (in Ukraine – in the presence of the President of Ukraine). It is an important ritual – a symbol of giving a person judicial power. The oath itself is a symbolic action of conscious choice of responsible and impartial observance of the law in the professional functions of realization of the rule of law for the good of all people. The coronavirus pandemic has shown that gathering a large number of people in one room can be problematic, so the oath ceremony was held even outdoors. It is stated that holding a ceremony in one of the judicial bodies, for example, in the premises of the Supreme Court or (subject to quarantine restrictions) in the territory of the Supreme Court may symbolize the independence of the judiciary and each judge from other branches of power. The peculiarity of the oath of a judge in Ukraine is its one-time nature. It should be taken only by a person first appointed to the position of a judge. In case of an appointment or transfer to another court, the judge shall not take the oath again. In this aspect, the oath of a judge is similar to the oath of a civil servant, which is taken only by persons recruited for the first time.

Науково-технічне забезпечення слідчої діяльності в умовах змагального кримінального процесу

The article reflects the results of the work of the laboratory staff «Use of modern achievements of science andtechnology in the fight against crime» on the fundamental scientific theme «Scientific and technical support of investigativeactivities in an adversarial criminal procedure», namely: the essence and tendencies of development of scientific andtechnical support of investigative activities in the conditions of adversarial criminal procedure are determined, the roleof criminalistic techniques and innovative technologies in the structure of scientific and technical support of investigativeactivities in modern conditions is clarified, the impact of scientific and technical support of pre-trial investigation bodieson the quality of investigative activities is analyzed, the problems of using special knowledge are considered and theirrole in the scientific and technical support of investigative activities in the conditions of an adversarial criminal procedureis determined, proposals are prepared to overcome the problems of scientific and technical support of investigative activitiesin the conditions of an adversarial criminal procedure.The publication provides a critical analysis of the norms of the current legislation of Ukraine and other countriesthat regulate the procedures of collecting evidential information by the parties to criminal proceedings, highlightsproblematic and debatable issues, suggests ways to implement the principle of adversariality and equality of parties inthe collection of evidentiary information in criminal proceedings. It is noted that in the conditions of an adversarialcriminal procedure, the foundations of «adversarial» criminalistics began to form, which include the tactics of the court(judge), the tactics of state prosecution and the tactics of professional defense.Based on the generalization of criminal proceedings and the results of a survey of potential participants in the criminalprocedure (investigators, operatives, prosecutors, lawyers and judges), it was established that forensic examination playsan important role in the scientific and technical support of investigative activities and improve its quality. It has beenproved that the expert opinion (including non-state) from the defense should be considered by the investigator and thecourt along with other evidence.Key words: scientific and technical support of investigative activities, adversarial criminal proceedure, equality ofarms in criminal procedure, special knowledge.

ДОСУДОВЕ РОЗСЛІДУВАННЯ КРІЗЬ ПРИЗМУ ЗАРУБІЖНОГО ДОСВІДУ

The article analyzes the organizational features and legal regulation of the stage of pre-trial investigation in such countries as Germany, France, Sweden, Estonia, Kazakhstan, Moldova, Russia. The study of criminal procedure legislation of certain countries and its application in practice suggests that there is a tendency to optimize the pre-trial investigation. Most of the considered foreign countries in the construction of simplified procedures for the investigation of minor crimes along with objective factors (low degree of public danger of the act, the obviousness of the crime, the admission of suspects (accused) of their guilt) also proceed from such conditions as equality of arms, awareness and voluntariness of the decision of the suspect (accused) on simplification of criminal procedure, provision of a reasonable level of guarantees of the rights of participants of criminal proceedings, preservation of the general order. Analyzing the pre-trial investigation in different countries, it was concluded that in these countries there are attempts both to approve the common standards of criminal procedure and to preserve their national legal traditions. Ukraine is in the process of reforming its pre-trial investigation bodies. On July 1, 2020, Law № 2617-VIII "On Amendments to Certain Legislative Acts of Ukraine Concerning Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" (as amended) entered into force, aimed at humanizing criminal proceedings in accordance with European legislation. Today, our state has already moved from the stage of adopting legislative initiatives to the consistent implementation of the provisions of this Law, which are enshrined, in particular, in the Criminal and Criminal Procedure Codes of Ukraine. In this regard, the positive experience of the studied foreign countries (especially such post-Soviet countries as Estonia and Kazakhstan, which have a common past with Ukraine and which have already made successful steps in this area) will be useful for domestic professionals to qualitatively and timely eliminate all conflicts and gaps that arise during the application of the Law № 2617-VIII "On Amendments to Certain Legislative Acts of Ukraine to Simplify the Pre-trial Investigation of Certain Categories of Criminal Offenses", make all necessary relevant decisions, and thus increase efficiency pre-trial investigation bodies.

Provisional Measures Under ICSID Rules: The Power of Tribunals to Interfere with Domestic Criminal Proceedings

In several recent International International Centre for Settlement of Investment Disputes (ICSID) cases, investors accused the respondent state of unfairly using its criminal law enforcement powers to advance its position in the arbitration. If the investor turns to the tribunal to intervene by ordering provisional measures, the tribunal finds itself in the most uncomfortable position: at the heavily contested border between state sovereignty and the tribunal’s duty to safeguard the arbitration process. The latest decisions indicate that tribunals are prepared to step in and order the suspension of domestic criminal proceedings when presented with specific evidence of harassment or intimidation of claimants or witnesses. This article reviews these controversial cases, describes the situations in which a request for provisional measures can be successful, what exactly the investor is required to show, and how far tribunals have been willing to go. Provisional Measures, ICSID, Procedural Integrity, Equality of Arms, Criminal Proceedings, Criminal Investigation, Parallel Proceedings, Article 47, Sovereignty

A comparison between the standard of proof applicable in arbitration and formal adjudication

This article aims to describe the application of the standard of proof in arbitration and to question whether the standard to be applied should be the same as or lower than in ordinary civil justice as a result of the contractual origin of the dispute. The determination of the applicable standard takes into consideration the equality of arms and other guarantees of due process, along with the fact of the absence of the standard rule in the Arbitration Act 1996. The arbitrator shall establish these aspects at the beginning of the process, considering also the rules of burden of proof.

Secondary Victimization of Animals in Criminal Procedure: Lessons from Switzerland

Abstract Switzerland is internationally known for its progressive animal laws and for its innovative tools in law enforcement. In 1992, the Canton of Zurich introduced a public lawyer vested with the task of representing animals’ interests in criminal procedure, known as the Animal Protection Lawyer (APL). The APL had the power to access information about court proceedings, study pending court cases, and intervene on behalf of victim animals. This enforcement tool set a precedent across the world. It amounted to a recognition of animals as de facto victims and created an “equality of arms” for human and animal parties in criminal procedure. In a historic move in 2014, the Zurich parliament removed the APL from office—by mistake, as some maintain. Meanwhile—unnoticed by many—the Canton of Berne maintained a state agency vested with the very same powers as those the APL had, called the Dachverband Berner Tierschutzorganisationen (DBT). Though the DBT operated as an established agency for over 2 decades, in August 2017, a criminal court in Berne denied the DBT standing, arguing that the laws conferring on it the right to represent animals violate the federal law on criminal procedure. In July 2018, the Supreme Court delivered its judgment, and effectively stripped the DBT of its rights to represent animals in criminal proceedings. This article describes these recent shifts in criminal animal law in detail and analyzes the sociopolitical factors that gave rise to them. Special attention is paid to the question of what is left for Switzerland as a role model in animal law given ongoing deregulations, particularly as recent cases in the United States point to an incremental emancipation of animals as victims. The article discusses current alternatives to the APL and the DBT (like public prosecutors, special prosecution sections, and veterinary agencies) and puts their promises under scrutiny. The analysis reveals that these alternatives skirt the main obstacles faced by animals in criminal procedure (issues of representation, expertise in animal law, funding, and competition with other causes) and threaten the democratic will of the Swiss people. Two alternatives are discussed that can help Switzerland overcome its insufficiencies: the organizational right to appeal and victim rights for animals in criminal procedure. Using these alternatives, the article calls for the global emancipation of animals as the proper victims of crimes and for furnishing them with correlating rights to enforcement, including rights to representation.

Solución de Controversias en Línea, Mecanismos Alternativos de Solución de Conflictos e Inteligencia Artificial para la descongestión en la administración de justicia.

Propósito ”“ Analizar la Solución de Controversias en Línea (SCL), con relación a los Mecanismos Alternativos de Solución de Conflictos, la Inteligencia Artificial y su efectividad para la descongestión de la administración de justicia.
 Metodología ”“ La investigación fue analítico cualitativa, se enmarca en las denominadas investigaciones exploratorias, esto es, aquellas que tienden a determinar tendencias, identificar relaciones entre variables y servir para investigaciones posteriores. Para el efecto, se realizó análisis documental de artículos publicados en revistas jurídicas y consultados a través de bases de datos científicas, en su mayoría búsquedas y hallazgos virtuales, que permitieran vislumbrar las instituciones jurídicas comprendidas en la Solución de Controversias en Línea y los Mecanismos Alternativos de Solución de Conflictos.
 Hallazgos ”“ La SCL ha permitido la aplicación de los Mecanismos Alternativos de Solución de Conflictos (MASC), tales como la mediación, la conciliación, la transacción o negociación y la amigable composición valiéndose de medios virtuales que incluso pueden incorporar inteligencia artificial, es decir, la posibilidad de que las máquinas imiten el pensamiento humano para tomar decisiones. Debe observar los principios de transparencia, equidad, rendición de cuentas y respeto a las garantías procesales offline, de los cuales, la celeridad, la economía, la igualdad de armas y la preexistencia de formas procesales afloran con facilidad en el proceso online, no obstante, garantías tales como la tutela efectiva de los derechos, la imparcialidad, la independencia, la inmediación y la publicidad podrían verse desdibujadas.

Technical Solutions for Legal Challenges: Equality of Arms in Criminal Proceedings

Abstract The paper focuses on how computational models and methods impact on current legal systems, and in particular, on criminal justice. While the discussion about the suitabilty of the exploitation of learning machines and Artificial Intelligence (AI) either as surveillance means and human substitutes in the judicial decision-making process is arising, the authors reflect upon the risk of using AI and algorithm-based evidence in criminal proceedings. The claim of the paper is twofold: on the one hand, we should reinterpret todays legal frameworks, e. g. the European Convention of Human Rights, shifting the attention from possible violations of the right to privacy to potential infringements on a basic fair trial feature, the Equality of Arms. On the other hand, we should aknowledge that main legal issues, triggered by the breathtaking advancements in AI, can properly be addressed mainly through technical solutions (e. g. methods for assessing the completeness and correctness of digital evidence related to mobile devices and conversations). No legal theory, which overlooks the crossover of juridical and computational expertise, will survive the present time.