THE USE OF ALGORITHMS IN CRIMINAL LAW. ON THE JUDGMENT OF THE DISTRICT COURT OF JUSTICE OF THE HAGUE (THE NETHERLANDS) ON SyRI, OF FEBRUARY 5, 2020

Abstract

This paper reflects the risks of using predictive algorithms in criminal law, based on the recent resolution of the District Court of Justice of The Hague (Netherlands), of February 5, 2020, which stated on its use by the Dutch government (specifically, SyRI tool) to trace possible frauds to the State committed by its citizens, considering that the hidden operation of this instrument violates the right to privacy enshrined by the ECHR. This decision contrasts with the response that the US courts have offered regarding the use of these actuarial tools to determine recidivism risk in criminal proceedings, showing a proclivity for their introduction on the understanding that the right to due process would not be violated with them. However, as will be concluded, it is understood that, in Spain, and with the support of the aforementioned resolution, the use in the criminal process of tools that are based on secret algorithms is contrary to the right to effective judicial protection.