The Supreme Administrative Court issued an important decision (III OSK 1189/21) regarding the selection of general court judges for decision-making. The decision is important not only for the rule of law, but also for standards of control in a digital state. The judges did not hesitate to state the merits of the case and explained in detail why transparency was important.
Algorithm plus source code
The case was initiated on 30 October 2017 by the Supervisor Polish Civil Network asking the Ministry of Justice about the source code of the Random Case Distribution System in General Courts. About the same time (December 4, 2017), the ePaństwo Foundation (now My State) asked about the selection algorithm. A year ago (April 19, 2021), the Supreme Administrative Court (III OSK 836/21) recognized the openness of the algorithm, and in mid-September the Ministry of Justice announced it.
The algorithm is the rules for drawing judges. It is important to know them, but it is not enough to know that the rules are followed. The source code is simply the implementation of the rules. Knowing this should allow professionals to understand whether judges’ drawings are fair and whether they have been manipulated. Doubts about the lottery arose when, for example, the same judge was repeatedly involved in cases in which a member of parliament – now a judge of the Constitutional Court – Krystyna Pawlowicz – was a party. It is in our interest to demonstrate and implement principles to build public confidence in judicial reform. It is difficult for us to be dissatisfied with the verdict. It simply has to be that way. Unfortunately, it took about 5 years to say that.
When the source code is disclosed and we hope that experts will investigate it. Only then will it be known whether the system is immune to human manipulation. It turns out that there are still additional problems and lack of information for social control. About them wrote the portal informatykzzakladowy.pl – We are familiar with the SLPS selection algorithm, ie … what exactly?
Digitization and solutions
Polish NGOs, such as Mojestwo or Panoptykon, have for years raised the issue of automated decisions that could lead to discrimination or injustice. They have written about it many times, for example, what should be done to prevent artificial intelligence from leading to real discrimination?
Civil society can see and describe problems, but it needs partners on the side of institutions who are willing to read the arguments, study the subject, and fulfill the task of upholding the law to solve them. Such a partnership has emerged in terms of algorithm and source code, and the decision will be fueled by European discussions on the dangers of transparency and automated decision-making in the digital state. This shows that decision-making systems are replacing people. In substantiating the court’s decision, the court stressed that the Random Division of Cases System is not an auxiliary system, it replaces the activities of an official and should therefore be subject to social control:
(…) The method of appointing judicial boards by the IT program – the System of Random Division of Cases (SLPS) leads to the conclusion that this program is not only “related” to the activities of the courts, but also replaces the activities in practice. an official or a judge whose activity is a public matter (determination of the composition of the court). If so, the transparency of social life and the proper functioning of the courts support the recognition that the SLPS source code constitutes public information within the meaning of Art. 1 item 1 udip
Disconnect with “automated” sentences
Of course, we are also pleased that the court did not consider the problem and did not issue a verdict based on judicial practice, which has no basis in the Constitution or the Law on Access to Public Information. The point is that since 2012, jurisprudence has included internal or technical ideas that are eagerly used by offices. And so – according to the courts – were emails from which domestic or technical laws were created, or images from cameras that recorded violations of the law in the Seym, but these were “technical” cameras. This approach is widespread. But this was not always the case, it just came at once. In this source code decision, we recognize the pre-2012 approach:
First of all, it should be emphasized that in accordance with Art. Paragraph 1 According to paragraph 1 of the Law, any information on public issues constitutes public information in the sense of the Law and must be provided under the conditions and in the manner prescribed by this Law.
At the same time, Art. Item 1 should be interpreted in conjunction with 1 udip Art. 61 sec. Article 1 of the Polish Constitution provides for the right to public information, including the right to receive information on the activities of state bodies and persons performing state functions. Undoubtedly, this law aims to ensure the transparency of public life and the activities of government agencies. As rightly noted in the decision of the Supreme Administrative Court of 9 December 2013, № Act I OPS 7/13 (pub. Eksportenia.nsa.gov.pl) , can help improve standards of compliance with the law. improve relations between citizens and the state and, finally, build trust in public authorities. ”Thus, the content of Art. .
Could this mean any new trends and changes? Since jurisprudence can lower transparency standards in Poland, perhaps they could be raised? After all, the rules have not changed for more than 20 years.
Regardless of all considerations, on May 26, 2022, something important happened for discussions on openness, the rule of law, and the digital state. The court ruled in favor of the public, thereby upholding the rule of law.
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