Technological developments are rapidly evolving in the 21st century, especially in the newly developed sector of Artificial Intelligence (AI). The Council of Europe considers the Artificial Intelligence (AI) regulation as one of its priorities in order to find a fair balance between the benefits of technological progress and the protection of our fundamental values.
On 28 November 2018, the CDPC held a thematic session in Strasbourg on AI and criminal liability. This session aimed at comparing and understanding the different criminal legislations set out by the member States and highlighting and comparing the issues of automated driving at a domestic and international level.
Following the thematic session, a Working group composed of AI and criminal law experts, tasked with taking stock of the existing regulations, identifying future challenges, making proposals for possible action and standard-setting activities, has been set up. After the 77th plenary meeting of the CDPC, held in December 2019, this Working group was also instructed to carry out a feasibility study identifying the scope and the main elements of a future Council of Europe instrument on AI and criminal law.
The Working group recommended the creation of an international legal framework and instrument to establish specific national legislation regarding driving automation. In addition to the need for the formation of common standards to allocate possible criminal responsibility, clarification of connected procedural issues and possible human rights implications to be a joint effort by public and private sector actors. This was recommended to ensure technology can develop with respect for the founding principles of civil society. The safeguarding of algorithmic accountability, however, is presented as the responsibility of member States to devise effective mechanisms.
This feasibility study was completed and was adopted by the CDPC in order to decide which follow-up to be given by the Council of Europe to the issue on AI and criminal law. A Working Group to draft an instrument on Artificial Intelligence and Criminal Law has been set up.
