Spanish Judges Speak Out About the Use of Artificial Intelligence to Generate Judicial Decisions

At the 32nd National Conference of Chief Judges held this past April, Spanish judges discussed their concerns regarding recent legislation that introduced the use of AI to help draft judicial decisions.

The new Royal Decree-Law (RDL) 6/2023 of December 19th, introduced by the Spanish government included legislative modifications in order to digitalize the justice system and enhance efficiency in judicial proceedings. In order to do this, three different initiatives were introduced: “Automatization”, “Proactive actions” and “Assisted Actions”, the last one being the primary concern for judges by enabling the creation of documents that could be used to draft judicial or procedural resolutions. The legislation introduces an Assisted Action as “one for which the Justice Administration information system generates a complete or partial draft of a complex document based on data, which may be produced by algorithms, and can serve as the basis or support for a judicial or procedural decision." (article 57.1)

As the chief judges mentioned, the key issue here is the lack of regulation of artificial intelligence through the Assisted Actions, stating that “this matter should be specifically regulated according to EU legislation since it involves high risk systems that could affect fundamental rights and it should be governed by a rigorous legal framework regarding its control, supervision and transparency which is not included in the current reform”. The 32nd National Conference was not the only instance where judges expressed their concerns regarding the new modifications: a month later, in the XIX Conference of the Presidents of the High Courts of Justice, it was expressed that artificial intelligence should work as an assistance to judicial activity and “not as a solution to the problem of the excess workload that affects our judicial bodies”. Although it is defended that using AI could ensure the delivery of neutral and objective judgments, it was stated that there needs to be a high level of transparency regarding how the AI would be trained, since “whoever controls the algorithm, along with its biases, will influence the judicial decision, which can substantially affect judicial independence”

The concern for artificial intelligence replacing human judges was also expressed last year by the Spanish Supreme Court’s Chairman of the Criminal Chamber, Manuel Marchena. While recognizing that it could be a useful tool to help judges in their functions, he also reminded that in the Spanish legal system, as opposed to common law jurisdictions, “the preexistence of a case similar to the one being tried cannot, on its own, justify the outcome”. While some argue that AI could become useful in dictating decisions in cases that are very similar to each other, this could become an issue if the AI is faced with a situation that has no precedent: “Ultimately, the process of creating a judgment is an interpretation, an internal debate about which ideas are correct, and a thorough examination of the facts; artificial intelligence is a tool to challenge your arguments and thereby enhance the reasoning of judgments” (Ascension Martin, spokesperson for Judges for Democracy).

Nevertheless, regarding the Assisted Actions, the reform states that the draft generated will never constitute a judicial decision on its own, requiring the corresponding authorization from the competent authority. This means that the constitution of a judicial resolution will require a validation from the corresponding judge, magistrate, prosecutor, etc. Moreover, the draft will only be generated at the user’s request and may be freely and completely modified by them.
In sum, it seems that the general consensus between judges is that artificial Intelligence can be a tool to assist the different judicial functions, but completely replacing them could lead to a series of issues.

Although the RD 6/2023 does not replace the human judge with artificial Intelligence, and seems to include AI only as a tool for judges, there are still concerns regarding the lack of regulation around these new mechanisms. We can expect to see more digitalization in the Spanish justice system in the years to come, but it remains to be seen how AI will be integrated into it, or if it will be adequately implemented.

By María Gracia Gálvez Neri
Gijón, España

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or positions of the UIA.