Artificial Intelligence and the Right to an Effective Remedy
Sarah de Heer · Oxford University Press eBooks · 2023
Abstract This chapter discusses the effects of artificial intelligence (AI) on the right to an effective remedy. The potential adverse impact on this right is particularly worrisome, since the right to an effective remedy safeguards alleged violations to substantive human rights. The right to a fair trial, and more specifically the right to a fair hearing, safeguards the individual’s right to an effective remedy. Thus, this chapter outlines the legal framework containing the three elements of the right to a fair hearing, namely (i) the adversarial principle; (ii) the principle of equality of arms; and (iii) the right to a reasoned judgment. Next, this chapter assesses the effects of generic AI applications on these three requirements and specifically focuses on one AI application, namely automated decision-making (ADM) systems. Subsequently, this chapter describes the general characteristics of ADM systems, namely (i) the opaqueness surrounding how they work and, (ii) their ability to process vast amounts of data, and argues that these features may hamper the three criteria of the right to a fair hearing. Last, this chapter examines the regulatory framework and possible policy proposals to overcome the unfavourable impact of these two common characteristics of ADM systems.