The Pan-European General Principles on Digitalisation of Public Administration, E-Government and (Semi-) Automated Administrative Decision Making Processes
(compiled by Ulrich Stelkens)
I. The Pan-European General Principles on Digitalisation of Public Administration and E-Government
II. Pan-European General Principles on (Semi-) Automated Administrative Decision Making Processes
I. The Pan-European General Principles on Digitalisation of Public Administration and E-Government
The pan-European general principles on digitalisation of public administration and e-Government focus on the question if there is a pan-European general principle to deliver digital public services - and a corresponding right to "good digital administration".
- The pan-European general principles on data protection (for these principles click here) may therefore limit the possibilities of digitalisation of administration. However, data protection law should not be equated with rules for the implementation of e-Government and the promotion of public digital services in the interest of the citizens (the 'users' of public digital services).
- The pan-European general principles on transparency (for these principles click here) can be closely linked to the pan-European general principles on digitalisation of public administration and e-Government: Internet and electronic communication can facilitate the dissemination of (official) documents and access to data and can therefore be used to create transparency through an active communication policy and an open government strategy. Digitalisation can thus be tool instrument to promote transparency, but creating transparency is only one 'public service' that can be provided by electronic government.
- The pan-European general principles on transnational mutual assistance and participation in administrative procedures and transfrontier cooperation (for these principles click here) are factually closely connected to the pan-European general principles on digitalisation of public administration and e-Government: Internet and electronic communication can facilitate transnational administrative action (like the dissemination of (official) documents and the access to data in general) and may therefore be used for this purpose. Digitalisation may, thus, be a tool to promote transnational mutual assistance, participation and cooperation but this is only one 'public service' that can be delivered by the means of electronic government.
1. Digitalisation of the administration in the work of the CoE
1. Digitalisation of the administration in the work of the CoE
b) Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
a) Introduction of the Explanatory report to Resolution (74)29 on the protection of the privacy of individuals vis-à-vis electronic data banks in the public sector
Explanatory report (drafted by the European Committee on Legal Co-operation (CCJ) – Addendum to the report on the 21st meeting of the CCJ (CM(74)171-add) 29 July 1974):
"Introduction
1. It is hardly necessary to emphasise how important it is that every individual in modern society is guaranteed satisfactory protection with regard to the electronic
processing of data concerning him.
In the early 1960s when computers made their first appearance as administrative aids, the need to protect citizens against possible risks for their privacy did not
appear to be urgent. Computers were expensive and their use was limited to a small number of public services.
In recent years, however, the need to provide adequate safeguards for the individual has become more acute as a result of two parallel and interdependent processes : the growing complexity of the social fabric and the headway made by information technology.
2. In all fields of human activity, electronic data processing has been introduced as an efficient and powerful instrument to solve complex problems. In certain fields it
has already become virtually indispensable.
The advantages derived from the use of computers in the public sector are very obvious. They can help to rationalise administrative work. In relieving the administration from tedious tasks such as copying, filing, keeping records up to date, issuing certificates, documentation, etc information technology raises administrative productivity.
Information technology improves the capacity of every administration to store, process and utilise data on which its decisions are to be based. It enables, moreover, several administrations, at different levels (central, regional,lecal), to pool their data.
Thus, automation, can raise the quality of public service notwithstanding the constantly growing volume, diversity and complexity of the tasks of the administration.
3. The main applications of information technology by the public administration will vary considerably from one state to another as a result of certain considerations such as the volume of the operations, their cost, administrative traditions, technical infrastructure, etc. Among the most common uses of computer technology by the European states are to be mentioned: statistics, postal accounts, social security, personnel management, financial administration, health services, land registers, criminal records, business firms’ registers, motor vehicle administration and internal revenue.
Information stored in population registers, which are now increasingly being computerised and which deserve special attention because they respond to the needs of all branches and levels of the public administration is a typical example of information used for more than one purpose.
4. The citizens who are seeing the gradual introduction of computers in public administration will form an opinion of its advantages or inconveniences. They will appreciate the speed, clarity and logic with which information is handled in administrative processes affecting them. But at times they may also be anxious about what may appear to them to be an increase in the power of the authorities as a result of computerised administration. First, there are fears that the use of computers will allow several administrations to exchange among themselves various kinds of information on the same persons and that it will be possible in this way for the state to compile and keep up to date a detailed "profile" on individual citizens. In fact, it is by no means a simple matter to build up such profiles; a number of technical difficulties stand in the way. Nevertheless, this potential capacity of modern public administration has awakened in some people a fear that their privacy is losing ground.
5. Furthermore, the possibility that the same information may be used for more than one purpose a s a result of several parts of the administration being able to obtain access to it has led to doubts about the real purposes for which the information is required and about the confidentiality aly of the information stored."
b) Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
"2. The Assembly invites Council of Europe member states to engage, where necessary, on reforms to modernise and streamline public administrations, in particular by introducing e-administration so as to give citizens easier access to information, eliminating obsolete or inefficient services, and introducing effective and clear administrative procedures that define the boundaries of unlawful behaviour and ensure compliance with principles of ethics. Such an approach would render European public administrations in need thereof more transparent, efficient and responsive both to changes in citizens’ concerns and to an evolving international environment characterised by rapid technological progress and growing economic interdependence.
[...]."
The Reply from the Committee of Ministers adopted at the 864th meeting of the Ministers’ Deputies (4 December 2003) focusses on civil service legislation and does not deal with reform of administrative organisation.
c) Recommendation Rec(2004)15 of the Committee of Ministers to member states on electronic governance ("e-governance")
"The Committee of Ministers [...];
Emphasising the importance of maintaining and enhancing democratic institutions and processes in the context of the new opportunities and challenges arising from the rapid emergence of the Information Society;
Convinced of the continued and essential leadership role that national, regional and local public authorities must play in identifying and responding to these opportunities and challenges, by implementing comprehensive e‑governance strategies;
Acknowledging the range of e-governance initiatives in member states at the national, regional and local levels;
Noting that the development and implementation of these e-governance initiatives should serve to further strengthen human rights, particularly the right of everyone to express, seek, receive and impart information and ideas;
Convinced of the potential of these initiatives to improve the relationship between public authorities and other stakeholders in civil society, enhance the quality of public services and improve the efficiency of public authorities;
Aware of the potential risks related, in particular, to the abuse of personal data, lack of access to information and communication technologies (ICT) and inadequate e-literacy skills among certain sectors of the population;
Noting that e-governance is about democratic governance and not about purely technical issues, and convinced therefore that the full potential of e-governance will be harnessed only if ICT are introduced alongside changes in the structures, processes and ways that the work of public authorities is organised;
Stressing that the development and dissemination of common guidelines for good e-governance practice are essential to the sharing of expert knowledge across borders, learning from and building on the successes and difficulties of partners, and avoiding duplication of work and the inefficient use of resources;
Taking into account, and building upon the previous work by the Council of Europe and other inter-governmental organisations, particularly that listed in the Explanatory Memorandum to this Recommendation,
Recommends that member states:
1. Review their e-governance polices, legislation and practice in the light of the guidelines appended to this Recommendation.
2. Work together with the appropriate international, national, regional and local stakeholders, to develop a shared vision of e-governance that upholds human rights, democracy and the rule of law by:
– strengthening democratic institutions at all levels and making them more accessible, transparent, accountable and responsive;
– providing opportunities for all to participate in the process of decision-making, thereby contributing to a more dynamic, inclusive democracy;
– improving public administration and services by making them more accessible, user-centred, transparent, efficient and cost-effective, thus contributing to the economic and cultural vitality of society.
3. Develop an e-governance strategy which:
– fully complies with the principles and domestic organisation of democratic government;
– enhances the effectiveness of democratic processes;
– widens the choices available to users for communicating and transacting with government by providing additional channels;
– is based on an inclusive and non-discriminatory approach;
– involves users in strategic choices and respects their needs and priorities;
– ensures transparency and sustainability;
– promotes a coherent and coordinated approach between the different spheres and tiers of government;
– provides a framework for partnership between the public authorities, the private sector and other organisations of civil society;
– maintains and enhances citizens’ confidence in democratic processes, public authorities and public services, including through protecting personal data;
– includes solid risk-assessment and risk-management measures;
– enables and improves access to appropriate ICT infrastructure and services that are simple and fast to use;
– ensures system availability, security, integrity and interoperability;
– provides for an ICT policy based on technology neutrality, open standards and on the assessment of possibilities offered by different software models, including open source models;
– contains provisions for broad-based education and training as well as appropriate public information measures;
– takes into account relevant international developments;
– incorporates mechanisms for ongoing evaluation and evolution.
4. Seek to apply the principles in this Recommendation to other organisations involved in the delivery of public services.
5. Disseminate widely this Recommendation and its appendix, where appropriate accompanied by a translation.
Tasks the Secretariat to include, where appropriate, e-governance aspects into, inter alia, the Council of Europe’s democracy projects and into the work of its field offices.
Decides to reconsider the issue of e-governance two years after the adoption of this Recommendation.
The Appendix to Recommendation Rec(2004)15 describes its "purpose" as follows:
"The purpose of this Recommendation is to assist member states in developing strategies for e-governance that make effective use of information and communication technologies (ICT) in the relationships between public authorities and civil society, as well as those between public authorities, and in the functioning of public authorities in the framework of democratic processes and the provision of public services.
In this Recommendation, 'users' refers to individuals or any organisation, including the private sector and public authorities, using or wishing to use e-governance services."
Then, the Appendix to Recommendation Rec(2004)15 describes guidelines on (I.) "E-democracy" (guideline 1 - 3), (II.) "Public e-services" (guideline 5 - 6), and (III.) "E--governance strategies", subdivided in "Key characteristics of e-governance strategies" (guidelines 7 - 15), "Guiding principles for implementation" (guidelines 16 - 22), and "Enabling conditions for e-governance strategies" (guidelines 23 - 26).
The Explanatory memorandum (CM(2004)210-Add) 17 November 2004) explains the context of this recommendation (para. 1 ff.), the different 'bullets' of the preamble (para. 20 ff.) and, finally, the different "guidelines" also by referring to 'best practices' in some CoE member states.
d) Further work of the CoE on eGovernment instruments and their potential to foster good administration and human rights
"Executive Summary
[...].
The report highlights some of the promising features of blockchain technology and various types of implementation, from cryptocurrencies, to smart contracts, to distributed autonomous organizations (DAOs) and non-fungible tokens (NFTs). It also presents some of the important limitations that may impede fundamental rights
As the technology has numerous applications including democratic tools and support for human rights, the report presents different use opportunities in line with the Council of Europe’s global democratic agenda to advance democratic functions and ensure accountability and transparency, from digital identity and information self-determination, to supporting refugees and vulnerable populations, responsible supply chain, immutable land titles and voting systems, as well as efficient dispute resolution mechanisms.
Finally, the report discusses some of the legal issues that may arise from the use of this technology, with emphasis on matters that may welcome leadership from the Council of Europe in regards to the protection of anonymity and privacy rights; the legal status of automated contracts and decentralized autonomous organizations; and the conflict of law and jurisdiction due to the distributed and global nature. In the appendix, the report includes a table presenting the interface of blockchain technologies with the European Convention on Human Rights."
See furthermore the overview on the work of the CoE on Artificial Intelligence at the website on "Council of Europe's Work in progress"
2. Concretisation of the pan-European general principles on digitalisation of the administration by non-CoE Sources?
a) EU's Benchmarks for "good digital administration"
b) Digitalisation of the administration in the work of the OECD
a) EU's Benchmarks for "good digital administration".
b) Digitalisation of the administration in the work of the OECD
OECD Recommendation on Digital Government strategies (adopted by the OECD Council on 15 July 2014); cf. the explanation of the approach of this recommendation in the 'foreword' to the recommendation:
"This new digital governance context and the multiplication of technological options raise challenges and risks for which governments must prepare. The new possibilities, and the changing societal expectations that arise from them, require governments to re-examine their governance approaches and strategies.
Failures to do so could mean an accelerated loss of trust in government and a perception that it is out of touch with societal and technological trends. But are governments really equipped to use digital technology to work more closely with citizens and businesses, particularly in a context of continuous budgetary
constraints?
The challenge is not to introduce digital technologies into public administrations; it is to integrate their use into public sector modernisation efforts. Public sector capacities, workflows, business processes, operations, methodologies and frameworks need to be adapted to the rapidly evolving dynamics and relations between the stakeholders that are already enabled – and in many instances empowered – by the digital environment. Setting up more open approaches to policymaking and public service delivery requires governments to re-organise themselves around user expectations, needs and associated requirements, rather than their own internal logic and needs. To this end, digital government strategies need to become firmly embedded in mainstream modernisation policies and service design so that the relevant stakeholders outside of government are included and feel ownership for the final outcomes of major policy reforms.
This shift to use technology to shape public governance outcomes, and not simply to support government processes, requires coherent and strategic planning of policies for digital technologies use in all areas and at all levels of the administration. However, governments remain organised around units, each with clear
responsibilities and processes, as well as problems to integrate their ways of working. This is a major challenge to creating broad political commitment and ownership for integration of digital government into overall public sector reform strategies. Governments need to ensure that their own capacities, norms,
structures and risk management models are aligned with their strategic digital government vision, and vice-versa. It is imperative that governments also understand the level of organisational maturity of the public sector in relation to project management methods and approaches, and are able to achieve appropriate levels of maturity in relation to their needs and ambitions, to optimise the impact and results of digital government investments."
OECD Digital Government Toolkit based on 12 principles, namely
1. Openness, transparency and inclusiveness
2. Engagement and participation in policymaking and policy making and service delivery
3. Creation of a data-driven culture in the public sector
4. Protecting privacy and ensuring security
5. Leadership and political commitment
6. Coherent use of digital technology across policy areas
7. Effective organisation and governance frameworks to coordinate
8. Strengthen international cooperation with governments
9. Development of clear business cases
10. Reinforce ICT project management capabilities
11. Procurement of digital technologies
12. Legal and regulatory framework
II. Pan-European General Principles on (Semi-) Automated Administrative Decision Making Processes
"Automated data processing techniques, such as algorithms, [...] are also increasingly used in decision-making processes, that were previously entirely in the remit of human beings. Algorithms may be used to prepare human decisions or to take them immediately through automated means. In fact, boundaries between human and automated decision-making are often blurred, resulting in the notion of ‘quasi- or semi-automated decision-making'."
1. General safeguards in (semi-) automated administrative decision making processes
2. Profiling and automated administrative decisions
1. General safeguards in (semi-) automated administrative decision making processes
g) Preparatory work of the CDCJ for a new edition of the handbook "The Administration and You"
a) PACE Recommendation 2102 (2017) adopted 28 April 2017 "Technological convergence, artificial intelligence and human rights
"9. Moreover, the Assembly proposes that guidelines be drawn up on the following issues:
9.1 strengthening transparency, regulation by public authorities and operators’ accountability concerning:
9.1.1 the fact that responsibility and accountability of an act lie with the human being, no matter what the circumstances may be. References to independent decision making by artificial intelligence systems cannot exempt the creators, owners and managers of these systems from accountability for human rights violations committed with the use of these systems, even in cases where an act causing damage was not directly ordered by a responsible human commander or operator;
9.1.2 automatic processing operations aimed at collecting, handling and using personal data;
9.1.3 informing the public about the value of the data they generate, consent to the use of those data and the length of time they are to be stored;
9.1.4 informing people about the processing of personal data originating from them and about the mathematical and statistical methods making profiling possible;
9.1.5 the design and use of persuasion software and of information and communication technology (ICT) or artificial intelligence algorithms, that must fully respect the dignity and human rights of all users, especially the most vulnerable, such as elderly people and people with disabilities;
9.2 a common framework of standards to be complied with when a court uses artificial intelligence;
9.3 the need for any machine, any robot or any artificial intelligence artefact to remain under human control; insofar as the machine in question is intelligent solely through its software, any power it is given must be able to be withdrawn from it;
9.4 the recognition of new rights in terms of respect for private and family life, the ability to refuse to be subjected to profiling, to have one’s location tracked, to be manipulated or influenced by a "coach" and the right to have the opportunity, in the context of care and assistance provided to elderly people and people with disabilities, to choose to have contact with a human being rather than a robot."Cf. also the reply of the Committee of Ministers (CM/AS(2017)Rec2102-final) 17 October 2017
b) Committee of Experts on Internet Intermediaries (MSI-NeT) of the CoE, Study on the Human Rights Dimensions of Automated Data Processing Techniques (in Particular Algorithms) and Possible Regulatory Implications (MSI-NET(2016)06 rev3 FINAL) 6 October 2017
The report describes the carasteristics of (semi-) automated decision making (Part II), possible impacts on human rights (Part III), the regulatory implications of the use of automated processing techniques and algoritms (Part IV) and comes to the following conclusions (pp. 41 ff.):
"1. Public entities and independent non-state actors should initiate and support research that helps to better understand and respond to the human rights, ethical and legal implications of algorithmic decision-making. Therefore, they should support and engage with trans-disciplinary, problem-orientated and evidence-based research, as well as the exchange of best practices.
2. Public entities should be held responsible for the decisions they take based on algorithmic processes. The adoption of mechanisms should be encouraged that enable redress for individuals that are negatively impacted by algorithmically informed decisions. Human rights impact assessments should be conducted before making use of algorithmic decision-making in all areas of public administration.
3. Technological developments should be monitored closely and reviewed for potential negative impacts, with particular attention paid to the use of algorithmic processing techniques during elections and election campaigns. Effective responses to such negative impacts could include experimental regulatory approaches on how best to protect rights of others and guarantee regulatory goals, provided they are accompanied with systematic monitoring of their effects.
4. Public awareness and discourse are crucially important. All available means should be used to inform and engage the general public so that users are empowered to critically understand and deal with the logic and operation of algorithms. This can include but is not limited to information and media literacy campaigns. Institutions using algorithmic processes should be encouraged to provide easily accessible explanations with respect to the procedures followed by the algorithms and to how decisions are made. Industries that develop the analytical systems used in algorithmic decision-making and data collection processes have a particular responsibility to create awareness and understanding, including with respect to the possible biases that may be induced by the design and use of algorithms.
5. Certification and auditing mechanisms for automated data processing techniques such as algorithms should be developed to ensure their compliance with human rights. Public entities and non-state actors should encourage and promote the further development of human rights by design and ethical-by-design approaches and the adoption of stronger risk-assessment approaches in the development of software.
6. States should not impose a general obligation on internet intermediaries to use automated techniques to monitor information that they transmit, store or give access to, as such monitoring infringes on users’ privacy and has a chilling effect on the freedom of expression.
7. Public entities should engage with their own sector-regulators (insurance, credit reference agencies, banks, e-commerce and others) to develop specific standards and guidelines to ensure that they are able to respond to the challenges of the use of automated decision-making through algorithms and taking into account the interests of consumers and the general public.
8. Considering the complexity of the field, awareness of the general public – important as it is – will not suffice. There is an evident need for additional institutional arrangements. Therefore, public entities should initiate and support the creation of networks and spaces for all relevant stakeholders to analyse and assess different forms of algorithmic decision-making. All relevant stakeholders should engage in such an endeavour.
9. The Council of Europe as the continent’s leading human rights organisation is the appropriate venue to further explore the impacts on the effective exercise of human rights of the increasing use of automated data processing and decision-making systems (in particular algorithms) in public and private spheres. It should continue its endeavours in this regard with a view to developing appropriate standards-setting instruments for guidance to member states."
c) European Commission for the Efficiency of Justice, European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment (adopted at the 31st plenary meeting of the CEPEJ (Strasbourg, 3-4 December 2018)
The European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment defines five principles:
"1. Principle of respect of fundamental rights: ensuring that the design and implementation of artificial intelligence tools and services are compatible with fundamental rights;
2. Principle of non-discrimination: specifically preventing the development or intensification of any discrimination between individuals or groups of individuals;
3. Principle of quality and security: with regard to the processing of judicial decisions and data, using certified sources and intangible data with models conceived in a multi-disciplinary manner, in a secure technological environment;
4. Principle of transparency, impartiality and fairness: making data processing methods accessible and understandable, authorising external audits;
5. Principle "under user control": precluding a prescriptive approach and ensuring that users are informed actors and in control of their choices."
The principles as such as well as their explanation in the "in-depth study" accompanying this charter "on the use of AI in judicial systems, notably AI applications processing judicial decisions and data" shows that the principles of the European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment are principles which deal with general issues of "(semi-) automated public decision making" and not (only) with issues related to "(semi-) automated decision making in judicial processes".
d) Committee of the Convention for the Protection of Individuals with regards to Processing of Personal Data (Convention 108), Guidelines on artificial intelligence and data protection (T-PD(2019)01) 25 January 2019
These Guidelines follow and build on Committee of the Convention for the Protection of Individuals with regards to Processing of Personal Data (Convention 108), Report on artificial intelligence: Artificial
Intelligence and data protection: challenges and possible remedies (T-PD(2018)09Rev) of 25 January 2019
e) Recommendation CM/Rec(2020)1 of the Committee of Ministers to member states on the human rights impacts of algorithmic systems
Summary of the Steering Committee on Media and Information Society (CM(2020)33) 18 February 2020:
"Summary
The draft recommendation of the Committee of Ministers to member States on the human rights impacts of algorithmic systems proposes a horizontal set of guidelines, directed at States and at public and private sector actors, with a view to promoting an environment of legal certainty in which both human rights and innovation can thrive. Building on existing Council of Europe standards related to the protection of human rights in contemporary societies, the guidelines cover multiple aspects of the design, development and deployment of algorithmic systems: data management, modelling and analysis, transparency, accountability and effective remedies, precautionary measures and research, innovation and public awareness.In order to ensure that positive human rights effects for individuals, communities and societies be amplified and possible adverse effects prevented or minimised, member States of the Council of Europe must act at two levels:
A) they must ensure that they themselves refrain from violating human rights through their own use, development or procurement of algorithmic systems;
B) as regulators, they must establish effective and predictable legislative, regulatory and supervisory frameworks related to algorithmic systems that prevent, detect, prohibit and remedy human rights violations, whether stemming from public or private actors.
Private sector actors, in line with the UN Guiding Principles on Business and Human Rights, have the corporate responsibility to respect the human rights of their customers and of all affected parties. These due diligence requirements exist independently of regulatory frameworks and across jurisdictions.
Algorithmic systems are used today as essential tools of everyday life, including in communication, education, healthcare, economic activities and transportation. They also play an increasing role in governance structures and the management and distribution of resources.
Due to the wide range of types and applications of algorithmic systems, the extent of their impact on human rights depends on the specific purpose for which they are used, their possible knock-on effects, functionality, accuracy, complexity and scale. A system that does not create an adverse human rights impact at individual level may, nevertheless, have a collective impact on specific groups or the population at large and generate adverse effects on human rights, democratic processes or the rule law that member States should consider.
The speed and scale of socio-technical developments require constant monitoring and adaptation of applicable governance frameworks to protect human rights effectively in a complex and global environment. A precautionary approach is therefore obligatory, not least because the growing interdependence and interlocking of multiple algorithmic systems that operate in the same environment can generate serious and often unexpected consequences."
There seems to be no Explanatory memorandum to this recommendation
f) Guidelines of the Committee of Ministers of the Council of Europe on online dispute resolution mechanisms in civil and administrative court proceedings (CM(2021)36add4-final) of 16 June 2021
"Purpose and scope
The guidelines apply to online dispute resolution (ODR) mechanisms used by courts. They provide guidance in relation to fair procedure, transparency in the use of ODR and requirements for hearings, special issues related to the ICT nature of ODR techniques and other issues not stemming from the jurisprudence of the European Court of Human Rights. They do not cover internal management of electronic case files by the courts or alternative dispute resolution (ADR) mechanisms, such as mediation and conciliation. However, member States may wish to extend their application to ADR if and where appropriate.
Definitions
For the purpose of these guidelines, the terms below have the meanings indicated:
i. Court [...]
ii. Online dispute resolution (ODR)
"Online dispute resolution (ODR)" refers to any online information technology (IT) used by a court to resolve or assist in resolving a dispute.
iii. Artificial intelligence (AI)
"Artificial intelligence (AI)" refers to a set of scientific methods, theories and techniques the aim of which is to reproduce, by a machine, the cognitive abilities of a human being.
iv. Information and communication technology (ICT)
"Information and communication technology (ICT)" refers to technology that provides access to information through telecommunications."
Some of the principles spelled out in this "guidelines" (immideatly following these definitions) deal with general issues of "(semi-) automated public decision making" and not (only) with issues related to "(semi-) automated decision making in judicial processes". This is especially true for principle
- No. 6 ("Parties should be notified when it is intended that their case will be processed with the involvement of an AI mechanism.")
- No. 14 ("Technical difficulties in the functioning of ODR should not prevent the courts, even for short periods, from examining cases and performing appropriate procedural steps.")
- No. 18 ("Sufficient reasons should be given for decisions reached using ODR or with the assistance of ODR, in particular the decisions reached with the involvement of AI mechanisms.")
- No. 20 ("Where national law allows for purely automated decisions, such decisions should be open to review before a judge.")
- No. 21 ("The design and operation of ODR mechanisms should be made transparent and explained in an intelligible manner using clear and plain language.")
- No. 25 ("ODR should be designed in such a way that all documents generated, including the final judgment and other decisions or notifications, are written in clear and plain language.")
See, furthermore, the Explanatory memorandum to this guideline.
g) Preparatory work of the CDCJ for a new edition of the handbook "The Administration and You"
"Activity proposal
1. Renew The Administration and You handbook in the light of the use of artificial intelligence (AI) and non-AI algorithmic systems.
Task
2. Expand and develop the Council of Europe handbook The Administration and You: Principles of administrative law concerning relations between individuals and public authorities, in the light of the use of artificial intelligence (AI) and non-AI algorithmic systems in administrative law. How the principles of good administration – equal treatment; transparency; access etc. could be highlighted in a user-friendly way.
Concept
3. It is assumed that algorithmic decision-making systems are contributing to better, accessible and more tailor-made public services in the best interests of the general public.
What are the most important issues for a citizen while an AI system is affecting public services? What are the questions a service provider has to think about to grant non-biased and transparent services?
4. It is necessary to examine what are the most relevant principles of good administration that are affected by algorithmic decision making. Transparency and other good administration principles are, at the same time, legal and ethical categories, but how should these principles be implemented and integrated in public services in everyday life?
5. All factors relevant to a particular administrative decision should be considered by a public authority when making its decision, with each factor given its proper weight. This could be illustrated through examples of how to ensure that algorithms are designed with this principle in mind.
6. The State has the responsibility to set the standards for algorithmic decision-making systems to ensure the respect of principles. There may be a need to define supervision in order to ensure that these standards are respected.
7. Where decision making is conducted via an internet platform, the physical location of a public authority may not be relevant. Nonetheless, the principles apply equally, irrespective of the location or whether or not the service is delivered via an internet platform or digitally. Given the specific character of online services provided by public authorities, it is particularly important that steps are taken by them to ensure that the principles in The Administration and You handbook are properly applied.
Working methods
8. Mapping different implementation activities in member States of the use of algorithmic decision-making systems and administrative support-systems in a comparative study to allow for more information on the use of AI and other algorithmic systems in administrative procedures more broadly. For example, what AI and non-AI applications are currently being used in member States and how are they used? Why are they being used and what are the potential advantages and the benefits of doing so? What are the typical or most important risks to people’s human rights, and what should people perhaps be wary of? Does a person have the right to know when AI technology is being used, are there any
differences in a person’s rights or the state’s responsibilities if an application is used?
9. On the basis of the study, as the first step, renew the handbook with the help of a group of experts, if appropriate, in relation to specific fields like health care, social services, labour or education.
10. Include an additional chapter and supplement every chapter with relevant examples.
11. Identify possible further CDCJ work related to artificial intelligence beyond this activity, which, if necessary, could/should lead to the renewal of existing legal instruments or to the development of a new legal instrument."
"B. On-going activities
[...]
Administration and Artificial Intelligence
27. CDCJ examined the concept paper on a CDCJ activity proposal in the fields of administrative law and artificial intelligence prepared and presented by Ms Kai Härmand (Estonia), as complemented by the Chair and the Vice-Chair, Mr Christoph Henrichs (Germany), the CDCJ representative to the Ad hoc Committee on Artificial Intelligence (CAHAI).
28. Work on Artificial Intelligence (AI) has increasing impact on the Council of Europe’s standards on human rights, democracy and the rule of law. Addressing the implications of this development on all domains of the work of the Council of Europe is high on the Organisation’s priorities, through CAHAI’s transversal work, or through the distinct areas of competence of the CDCJ and other committees. The CDCJ decided to retain the proposal and initiate work related to "Administration and Artificial Intelligence". The approved activity proposal, including working methods, appears in Appendix III to this report.
29. The CDCJ instructed the Secretariat to draw up draft terms of reference for a drafting group of CDCJ members and a draft workplan for implementing the activity, and to submit them to the Bureau for consideration and approval at one of its meetings of 2021 given its timeliness,
which would allow to start the work as soon as possible in 2021, taking into account that this activity should continue in 2022-2023, considering the importance of undertaking other work related to artificial intelligence.
30. CDCJ took note of the work European Commission on the Efficiency of Justice (CEPEJ), notably of its working group on cyber-justice and artificial intelligence (CEPEJ-GT-CYBERJUST). The CDCJ noted the existence of topics of mutual interest with the CEPEJ and drew attention to the possible overlap work need to be addressed. To avoid such an overlap, it instructed the Secretariat to co-ordinate with CEPEJ Secretariat to address this concern, with the support of the Bureau members if required."
To prepare the "update" of the handbook "The Administration and You", the CDCJ decided at its 97th plenary meeting to set up a limited working group of experts (CDCJ-ADMIN-AI) to proceed with the update: Report of the 97th Meeting of the CDCJ held by videoconference on 1-3 December 2021 (CDCJ (2021)34 final) of 23 February 2022, para. 20
See for the progress of this work:
h) Further work of the CoE on (semi-) automated decision making processes, Artificial Intelligence and their impact on human rights, democracy and the rule of law
See for the Work of the CoE with regard to Artificial Intelligence in general the websites on "Council of Europe and Artificial Intelligence" and especially the documents at the website on "Council of Europe's Work in progress"
See, furthermore,
-
the website of the CAHAI - Ad hoc Committee on Artificial Intelligence (2019 - 2021)
- the website of the CAI - Committee on Artificial Intelligence (since 2022)
2. Profiling and automated administrative decisions
a) Recommendation CM/Rec(2010)13 of the Committee of Ministers to member states on the protection of individuals with regard to automatic processing of personal data in the context of profiling
- Explanatory memorandum (drafted by the CDCJ (CM(2010)147-add3final) 25 November 2010)
- Recommendation CM/Rec(2010)13 was "replaced" by Recommendation CM/Rec(2021)8 of the Committee of Ministers to member States on the protection of individuals with regard to automatic processing of personal data in the context of profiling
b) Article 9 (1) (b) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) as amended by the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)
"Article 9 – Rights of the data subject
(1) Every individual shall have a right:
a) not to be subject to a decision significantly affecting him or her based solely on an automated processing of data without having his or her views taken into consideration;
b) [....]
(2) Paragraph 1.a shall not apply if the decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights, freedoms and legitimate interests."
"75. Littera a. It is essential that an individual who may be subject to a purely automated decision has the right to challenge such a decision by putting forward, in a meaningful manner, his or her point of view and arguments. In particular, the data subject should have the opportunity to substantiate the possible inaccuracy of the personal data before it is used, the irrelevance of the profile to be applied to his or her particular situation, or other factors that will have an impact on the result of the automated decision. This is notably the case where individuals are stigmatised by application of algorithmic reasoning resulting in limitation of a right or refusal of a social benefit or where they see their credit capacity evaluated by a software only. However, an individual cannot exercise this right if the automated decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights and freedoms and legitimate interests."
c) Recommendation CM/Rec(2021)8 of the Committee of Ministers to member States on the protection of individuals with regard to automatic processing of personal data in the context of profiling
- There seems to be no Explanatory memorandum to this recommendation