Effective Rights and Remedies in the Computable Era: Facing Informative Asymmetry When AI Adds to Transnational Cooperation

Numerous contributions in the last years have dealt with identifying the advantages brought by the AI potential to the criminal justice systems, and perhaps even more authors have raised their voices about the risks posed by such technology for the integrity of fundamental rights in this domain. However, AI systems often present significant challenges for transparency: information on the dataset is usually not available to the parties or the judge using the system, and a similar consideration may be made with regard to the information on the data processing methods and algorithms. This Chapter builds on those studies by focusing on the notion of effectiveness in the multi-layer context of judicial cooperation. With this perspective, the Chapter proceeds as follows: in section 2, an overview will be provided on the uses of AI systems in criminal justice, including investigations and judicial decision-making. In Section 3, a specific application of AI technology will be put in the context of the European Investigation Order cooperation mechanism. Looking at the EncroChat/Sky ECC transnational investigation that involved most EU Member States in recent years, the practical and systemic difficulties in ensuring fair trial rights will be highlighted when cooperation issues add up to technological challenges. Against such analysis, Section 4 stresses some proposals on how to approach the informative asymmetry typical of transnational technological investigations. Last, Section 5 concludes by focusing on the policymaker perspective, examining the recently adopted AI act in light of the highlighted problematics, and proposing some corrective recommendations on better addressing such a complex state of affairs.