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The outbreak of this pandemic disease i.e. Covid-19 is influencing litigation in numerous manners and has additionally injured the courts the nation over as judges, lawyers and litigants are attempting to accomplish justice under the law while adjusting open security. The quick spread of this infection has prompted the shutting down of Courts and Tribunals in the nation to maintain a strategic distance i.e social distancing from human affiliation and to check the spread of novel coronavirus in the nation. In any case, the Central Government and Judiciary has found a way to give alleviation to the individuals who are confronting this uncommon test. Despite the fact that the courts have been closed down, the Hon’ble Supreme Court of India has chosen to take up urgent issues by means of virtual procedures with the goal that the adv. and litigants don’t need to show up genuinely in the court in this current circumstance. The Hon’ble Supreme Court of India has additionally guided the separate Bars to advance virtual procedures and e-filing. Indeed, even the Courts suo-moto, taking cognizance of the difficulties being looked by the lawyers to introduce under the steady gaze of the Court truly for documenting of separate Appeals, Petitions, and so forth and has expanded the time of constraint until its further order, with this, would like to battle against coronavirus.
1. Introduction and objective……………………………….………………
3. International Law……………………………………………………………
4. Safeguards at particular risk during an emergency…………………
B. OVERALL OBSERVATIONS AND CHALLENGES…………..
- Differences across countries and courts…………………………….
- Need for constant revision and adaptation…………………………
- Backdrop for existing challenges for judicial system…………….
- Cooperation between legal professions and the importance of
5. Who decides?…………………………………………………………………..
- Disproportionate impact on certain groups……………….………..
- Legality, data protection and privacy………………………………….
C. VIDEOCONFERENCING AND OTHER IT SOLUTIONS….
- Electronic Case Management……………………………………………
- Problems faced with IT Solutions…………………………………….
- Videoconferencing and remote hearings…………………………….
- Conditions and criteria for the use of remote hearings……………
- COURTS DURING THE PANDEMIC…………………..……….
1. Defining urgent cases…………………………………………………….
- Who determines urgency…………………………………………………
- Knock-on impact of external pressures on the courts………………
- Introduction and Objective
The Outbreak of this pandemic disease i.e. Covid-19 influencing litigation in numerous manners and has additionally injured the courts the nation as judges , lawyers and litigants are accomplish to justice under the law while adjusting open security . The quick spread of this infection
has decided the shutting down of Courts and tribunals in the nation to maintain a strategic distance i.e. social distancing from human affiliation and to check the spread of novel coronavirus in the nation.
Central government and Judiciary has found a way to give alleviation to the individuals who are confronting this uncommon test . Despite the fact that the courts have been closed down , the Hon’ble Supreme Court of India has chosen to take up urgent issues by means of virtual procedures with the goal that the advocates and litigants don’t need to show up genuinely in the court in this current circumstance .
Yet courts have vital function during and after the pandemic , in particular to ensure judicial scrutiny of emergency legislation and to provide an effective remedy against excessive emergency measures in individual cases . Uninterrupted access to courts is also required in other urgent legal matters , and to uphold access to justice in general . Courts have attempted to address this in various ways , some closing their buildings entirely , others remaining partially open , and all having to move swiftly to delivery of justice remotely and through online platforms.
The publication draws upon comprehensive research , the review of multitude of documents and country – related examples received from numerous conversations and much correspondence , participation in the number of relevant webinars organized by other organizations , and a series of online consultations with members of judiciary and judicial organizations , the legal profession and civil society . These consultations also provided examples of how different courts across the participating States were responding to the pandemic .
Online consultations organized between April and June 2020 :-
. 9th April 2020: Webinar on “ The functioning of courts in the COVID-19 pandemic ”.
. 7th May 2020: Webinar on “ Courts in the aftermath of the COVID-19 pandemic ”.
. 4th June 2020: Online Consultation on health and safety measures in the context of reopening courts .
. 9th June 2020: Online consultation on “ How to ‘ triage’ cases, i.e., prioritization of cases and court facilities during lockdown and once courts are re-opening ” .
. 18th June 2020: Online consultation “ New types of cases as a consequence of the pandemic ”.
. 16th June 2020: The Central and Eastern European Law Initiative (CEELI) organized a joint webinar with ODIHR on “ Exit Strategies & Court Management post COVID-19 ”.
. 17th August 2020: Online Consultation on the draft primer on the functioning of courts during the COVID-19 pandemic .
The publication sought to include a variety of examples from different countries and regions ; however , it did not aim at referencing all 57 OSCE participating States. While a geographically representative approach was the aim , it may not have always been possible to achieve . The examples are illustrative rather than exhaustive, and their use intends to share information about challenges, measures and practices rather than single out any countries or courts. Nevertheless, recommendations are provided at the end of each chapter, consolidated in a checklist and the end of the primer, to assist courts in managing future pandemics and emergency situations.
3. International Law
The Observance of the rule of law , “based on respect for internationally recognized human rights , including the right to a fair trial, the right to an effective remedy , and the right not to be subjected to arbitrary arrest or detention ”, may never be more relevant than in times of crisis and emergency . Judicial
independence has repeatedly been recognized as a prerequisite to the rule of law and as a fundamental guarantee of a fair trial. Moreover, OSCE participating States have stressed unequivocally that the rule of law is not merely about formal legality but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression. In order to ensure the rule of law and access to justice more broadly, participating States committed to pay due attention to the efficient administration of justice and proper management of the court system. Even in times of emergency, overall respect for rule of law principles should be ensured. In particular, recourse to states of emergency “ may not be used to subvert the democratic constitutional order, nor aim at the destruction of internationally recognized human rights and fundamental freedoms”, and “Continuation of a state of public emergency not in accordance with provisions laid down by law is not permissible”.
Under International law instruments , States can temporarily derogate from certain rights during states of emergency (Article 4 ICCPR , Article 15 ECHR ). However, certain rights are non-derogable even in states of emergency . These include the right to be protected from torture and ill-treatment, as well as elements of the right to a fair trial , such as the resumption of innocence , and rights that are required to ensure the protection of expressly non-derogable rights, including the right to an effective remedy .
Even when no derogation is sought , emergency measures which restrict human rights and fundamental freedoms must comply with the requirements provided in the international human rights instruments . Such limitations must be provided for by law , be necessary and proportionate and non-discriminatory . Limitations must not be applied in such a way or to such an extent that the very essence of the right to a fair trial is impaired. During a state of emergency, participating States committed “ to ensure that the legal guarantees necessary to uphold the rule of law will remain in force ” and “ to provide in their law for control over the regulations related to the state of public emergency , as well as the implementation of such regulations ”. As the Office of the High Commissioner for Human Rights ( OHCHR ) notes , there should also be “ meaningful judicial oversight of exceptional measures or a state of emergency to ensure that they comply with the limitations ” under international law . Furthermore , ” emergency measures , including derogation or suspension of certain rights, should be subject to periodic and independent review by the legislature ”.
For more information about OSCE commitments and international law in the context of states of emergency , see ODIHR’s report OSCE Human Dimension Commitments and state responses to the Covid-19 Pandemic .
4. Safeguards at particular risk during an Emergency .
As a recent Declaration of the European Commission for the Efficiency of Justice (CEPEJ) noted , the key standards underpinning the operationalization of the Courts must continue even during times of emergency. Most crucially , the right to a fair trial , applicable to both civil and criminal proceedings , as set out in Article 14 of the
International Covenant on Civil and Political Rights ( ICCPR ) and Article 6 of the European Convention on Human Rights (ECHR) are at particular jeopardy . This right encompasses the principles of the presumption of innocence ; the rights to a public hearing and to defence; equality of arms ; the right to legal representation ; and to examine evidence and witnesses from the other parties ; as well as to an interpreter as appropriate .
A functional court system and fair trial rights are also fundamental in order to prevent the arbitrary deprivation of liberty . For example , Article 9 of the ICCPR and Article 5 of the ECHR require a trial within a reasonable time and various safeguards including review of the legality of the
detention by a competent court . Importantly , Article 9(3) of the ICCPR provides that “ anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power ”, with the Human Rights Committee stating that this should be “ in person ”.
It has also been apparent that there have been difficulties for trial monitors and those monitoring places of detention to access hearings and detention facilities , thereby they put their life at risk and their role in the identification and prevention of violations. Independent monitoring of places of detention is a recognized safeguard against torture and ill-treatment, the protection of which constitutes a non-derogable right.
The need to react quickly to a rapidly changing situation of an unprecedented nature is bound to create a risk in terms of the principles of legality and legal certainty. The constraints of national parliaments in times of lockdown and the temptation of different levels of policymakers to adopt a myriad of laws and regulations without consultation added to
this problem. Overall, there is a considerable risk of an erosion of the rule of law in responses to this pandemic and states of emergency overall.
In times of emergency, power tends to shift towards the executive, upending the separation of powers and the independence of the judiciary. This danger may be even more pronounced in an emergency like the COVID-19 pandemic given the lock-down measures and the resulting reduced
functionality of parliaments and courts. There is a risk that the imbalance between the three state powers will persist after the end of the emergency and is thereby “ normalized ”.
It is, therefore, crucial to constantly review and re-assess emergency measures against necessity, proportionality and non- discrimination requirements. As the European Commission for the Efficiency of Justice (CEPEJ) has noted, it is worth keeping in mind principles of “ flexibility, dialogue, innovation and concern for the needs and situation of vulnerable groups ”.
- OVERALL CHALLENGES AND OBSERVATIONS
1. Differences across countries and across Courts
Courts have faced a lots of challenges during the pandemic. Some courthouses and buildings closed fully, others partially, dealing with only “ urgent ” cases. The extent to which judges and court staff have been able to operate in person and
virtually during this time has depended on the particular State’s response to the pandemic, the regulations imposed by the authorities and the type of court and cases they deal with. Not all courthouses , staff members or members of the judiciary have been available, impacting how cases were prioritized and allocated. In some countries, it was necessary for courts to share facilities and staff among different courts (family, criminal, civil and administrative courts, where they are separated), and these courts may have considered different criteria to determine priorities .
This situation, and the immediate aftermath, has had a number of consequences. There has been a speedy shift to online working in order to deal with the lockdown and rules on physical distancing . Emergency legislation has been adopted, sometimes with limited parliamentary oversight. In addition, the speed of amendments to laws and regulations has made it difficult for legal challenges to be brought to the courts.
There have been numerous laws, regulations and policies directed towards the judiciary, amended frequently, and not always consistent in their approach. Moreover, judicial self- governing bodies and judges associations have not always been consulted on measures and their possible impacts on the judicial system. In addition, tensions have arisen between the judiciary and lawyers or between state authorities ( such as the executive versus the judicial branch ) with each having their own priorities and demands. Overall, one can see in many jurisdictions a lack of unified approach to justice during the state of emergency .
Not all courts in all States have experienced the same issues. There was significant variation in how countries have approached the management of courts , and there have also been disparities within those countries . Similarly , common law and civil law jurisdictions may have experienced different
challenges in adapting to the pandemic . Furthermore, the various courts and tribunals whether they be criminal, administrative, civil, immigration or family – first instance or appellate – have not all faced the same challenges in continuing to operate during this time .
2. Need for constant revision and adaptation
The environment has been changing rapidly during the pandemic . What was considered urgent at one point in time changed as countries went through different stages in the pandemic , in particular after the end of lockdowns. In addition, there can be different or competing pressures on what are considered to be priorities , including from the point of view of judges and lawyers .
As countries started to emerge from lockdowns , courts initiated the development of “ exit strategies ”. In Denmark, for example , a “ Plan for Reopening Courts ” set out the cases that can proceed without physical presence , those that should be carried out at home and those that demand particular attention . The plan included criteria for prioritizing cases , managing health and safety in court buildings , dealing with those who are infected , those who have symptoms of COVID-19 or individuals at risk , and approaching cases flexibly . Another example is Finland , where the National Courts Administration published a “ recovery plan ” on 29 May 2020 , drafted in cooperation with occupational health professionals .
3. Backdrops for existing challenges for Judicial System
The responses to the COVID-19 pandemic have taken place against a backdrop of challenges that courts have been facing for many years in a number of States . Financial constraints , ineffective procedures and the inability to deliver speedy justice remained . In addition , rule of law concerns observed in some countries have been exacerbated by the crisis . In addition , some participating States have seen a power shift during the pandemic away from the judiciary towards the executive, with a concern that this may become “normalized” and permanent.
Further, in some jurisdictions, the absence of a functioning Constitutional and Supreme Court impeded effective oversight of emergency legislation.
On the positive side , the pandemic has created an incentive for countries to review and reform justice systems . This has reignited discussions , for example , on virtual justice and remote delivery , as well as debates on how to reduce over- criminalization and over-incarceration by enhancing the use of non-custodial sentences and community-based approaches to offender treatment ( e.g., refraining from responding to minor , non-violent offences with imprisonment ).
4. Cooperation between legal professions and the importance of communication
The judicial system is based on interaction between many actors , including various professions ( e.g., lawyers , paralegals , probation officers ), as well as members of the public . Policymakers and practitioners should , therefore , consult with relevant legal professions when adopting measures during and in the aftermath of the pandemic .
This is crucial in order to take into account all possible effects and impacts of measures adopted , to ensure the earliest possible dissemination of information to all parties potentially affected and to avoid conflict within the judicial sector at a time of crisis . For example , lawyers in Greece went on strike after the reopening of some courts was announced , arguing that they had not been consulted on the plans and neither had the health authorities approved the reopening . In Spain , on 1 April , three of the four main judges associations sent an urgent letter to the Permanent Commission of the General Council of the Judiciary , warning that they would refuse to work if not provided with real means of health protection .
Therefore , as the European Commission for the Efficiency of Justice ( CEPEJ ) noted , “ Greater consultation and coordination with all justice professionals ( including lawyers , enforcement agents , mediators and social services) will help to ensure a good level of access to justice .” Sharing of experiences is also crucial in order to incorporate lessons learnt in any future .
Furthermore , measures and protocols adopted in relation to courts need to be communicated to all relevant persons including lawyers and their associations and their views sought. Due to the nature of the pandemic and the rapid adjustments it necessitates , effective communication is required within a particularly short period of time on , for example , how to visit courts in person , in which cases hearings will be held remotely , which criteria are used to determine urgent cases and how cases will be prioritized in managing the backlog .
A number of courts have provided detailed information on their websites to this end . For example , the Courts Service of Ireland published updates on the operation and conduct of various court business including on e-filing and remote hearings . A “ courts and tribunals tracker list ” by the Government of the United Kingdom provides information on which courts are open , staffed or suspended .
Different forms of communication may be needed to reach other audiences . Those who have to attend court in person, for example , may need to know whether this is feasible and if so , what procedures will be in place when they arrive . In Slovenia , for example , when individuals were invited to attend court they were provided with detailed protocols explaining how the processes will be managed . In States outside the OSCE , some courts have used the application WhatsApp to keep in touch with lawyers and provide them with information. This practice reduced the number of people who needed to enter court buildings .
5. Who decides ?
The question of decision – making powers and responsibilities , i.e., who has the authority for deciding how the judicial system should respond to the pandemic at various stages , has been a recurring and crucial matter , with different approaches adopted depending on the issue and the jurisdiction .
In some jurisdictions , decisions on how to manage courts during and post-pandemic have been taken by the executive authorities , with or without consultation from the judiciary . In some States and contexts , measures have been set out in legislation and procedural laws , while others have been determined by the judicial authorities such as judicial councils
or by judges themselves . For some matters , it was a combination of these actors . In Poland, Court Presidents made the decisions , although recommendations were prepared by the Ministry of Justice . Similarly, the Judicial Councils of Lithuania and Albania provided guidance to the judiciary on how to organize their court activities and measures that should be adopted during the pandemic .
Experience indicates that a balance should be found between the requirement of clarity and predictability of solutions and decisions on the one hand and flexibility to decide on a case- to- case basis on the other . The former is invaluable to prevent arbitrary decisions and unpredictable outcomes for court users , in line with the principle of legal certainty . The latter maintains judicial discretion and allows taking into account the specificities of the case as well as the location , type and size of the court .
6. Disproportionate impact on certain Groups
It is apparent that in many jurisdictions there has been a disproportionate impact on certain groups , in particular those already marginalized and vulnerable in society . For more on the impact of emergency measures on marginalized and minority groups , see ODIHR’s comprehensive report OSCE Human Dimension Commitments and State Responses to the Covid-19 Pandemic , published in July 2020 .
The right to access justice of marginalized and vulnerable groups should be taken into consideration in determining what is urgent , and in the delivery of technological solutions . Support for these individuals should continue throughout the pandemic and will need to adapt as courts emerge from the pandemic .
For example , marginalized communities are unlikely to have access to videoconferencing technology and risk being disadvantaged in terms of access to justice . If individuals are visually impaired or have an intellectual disability , this may impact their ability to participate fully in any remote hearing. Impairments may not be immediately apparent but may still make effective participation of parties with cognitive impairment, mental health condition and/or neuro-diverse condition more difficult .
Particular considerations are required where parties or witnesses require confidentiality , privacy and safety , for example in domestic violence cases , where abusive partners would be able to intimidate victims during videoconferences .
Victims of trafficking during the COVID-19 pandemic Control , violence and isolation by their exploiters increased the exposure of victims of trafficking as a result of the COVID-19 pandemic , aggravated by less access to assistance , including medical services , psychological services and legal assistance .
Changes in procedure , delays and postponements in administrative , criminal and civil cases as a result of emergency measures negatively impacted victims and survivors access to protection , justice and redress . According to a global survey of survivors of trafficking and frontline stakeholders conducted by ODIHR and UN Women (between 27 April and 18 May 2020), about half of the survivors experienced delays in receiving the statutory status of victim of trafficking or in other types of legal procedures . Respondents also indicated that they are not receiving information about the status of their cases .
7. Legality , data protection and privacy
Even though IT solutions may have been required at the first wave of the pandemic , their use in addition to or as an alternative to existing procedural requirements necessitates a clear basis in law , and must comply with international standards on data protection and privacy. Confidential information being shared accidentally (e.g., for failure to mute microphones), respecting privilege , challenges ensuring private hearings are not recorded – all are issues that courts have faced .
As considered in section D below , when accessing and sharing files in electronic interactions between individuals and using videoconferencing , data must be transmitted securely and confidentially . In Lithuania , for example , the judiciary and court staff working remotely must comply with the government’s Resolution no. 716 of 24 July 2013 on the General Description of Electronic Information Security. The exponential and rapid increase in the use of different technologies , alongside constant changes to the platforms being used , indeed raises concerns over the protection of such data . In addition , there may be lack of clarity about who owns the data – the provider or the court – in particular when stored in cloud-based solutions. Consequently , considerations about where the data centre is hosted , whether there is end- to-end encryption and requirements that court users certify confidentiality are all tools that could be used to ensure greater protection .
- Flexible exit strategies for emerging from restrictions imposed by the pandemic should be considered by courts .
- States should avoid “ hyper-production ” of laws , regulations and instructions on emergency measures for the judiciary from different levels of power ( legislative , executive , judicial ) . Such laws , regulations and instructions should not be contradictory or vaguely formulated and should be clear on the time when the measures start and end . Laws and regulations adopted as a response to the emergency should include sunset clauses , be temporary in nature and preferably be kept separate from regular , non-emergency legislation .
- Courts should ensure that the right to a fair trial is respected during states of emergency and that nobody is ever subject to measures that would circumvent non-derogable rights .
- Judicial oversight should be available to review both the constitutionality and legality of any declaration of state of emergency , and any implementing measures , to evaluate the proportionality of the restrictions , as well as procedural fairness of application of emergency legislation .
- Higher judicial authorities and court presidents should issue guidance to assist individual judges in determining how to manage their responses to the pandemic . Feedback should be sought , and guidance should be amended accordingly .
- Courts , when determining measures , should consider how to maintain a balance between clarity and predictability and judicial discretion and flexibility .
- Courts could consider the establishment of committees to propose and oversee measures to manage the pandemic .
- The judiciary should identify ways to share practices on their responses to the pandemic , among and across different courts, different regions of the country and different jurisdictions .
- Dialogue should be established with a wide range of professions , in particular with lawyers and bar associations , in order to ensure that considerations of access to justice and safety measures are adequately taken into account .
- When designing their protocols and responses to the pandemic , courts should consider the needs of vulnerable persons and the particular impact on their rights to fair trial and access to justice .
- Any measures and protocols should be communicated to all users , rapidly and regularly , and in ways which are accessible and which take account of vulnerabilities . Those attending court should be provided with detailed guidance .
- Alternative means of communicating with court users should be considered in order to reduce the numbers of persons attending court in person .
- The secure and confidential transmission of data needs to be ensured in the provision of any technology used by the courts.
C. VIDEOCONFERENCING AND OTHER IT SOLUTIONS
The most discussed aspect of the impact of COVID-19 on courts may be the rapid increase in the use of technology to manage the workload of courts and to maintain some functioning during lockdown and in its aftermath. Such IT solutions include video platforms to conduct remote hearings, systems to enable the filing, dissemination and sharing of documents, digital case management and e- signatures . The use of such technology requires internet connectivity and data security, and access of court users to computers, cameras/webcams, microphones , screens and Wi-Fi. While reluctance among judges to adapt to IT solutions and online delivery has been noted as almost proverbial in the past , the pandemic catapulted the judiciary into the age of technology. Some IT tools have been absorbed by judges enthusiastically in a number of jurisdictions, sometimes overlooking its insufficiencies for parties , and related fair trial concerns.
Also read: History of right to privacy
1. Electronic Case Management
The ability of the judicial system to operate remotely requires that those involved have access to , and are able to file and share , documents electronically , and subsequently an effective digital case management system . As the Fundamental Rights Agency (FRA) noted , this has been problematic if courts are not fully adapted to using such technology . Judicial systems that require files or motions to be picked up or delivered in person from or to police stations or courthouses faced
problems during lockdown and while public transport was not available or restrictions on movement applied. Correspondence with the courts , which required postal services , has also been affected . As a consequence of the pandemic , many States introduced or expanded avenues of electronic filing of court documents . For example , in Azerbaijan , the electronic filing of documents was made possible with additional support provided by telephone for each court . In Kazakhstan , a “ Judicial Cabinet ” was established that provided access to the courts through a single electronic filing platform . It enables the electronic submission of documents by smartphone , tablet or computer . Statistics indicated that over 62,000 applications (93.5 per cent of all applications) were submitted in this way between March and April 2020 . In Estonia , which has been building up its e-government system since the mid-1990s , digital access is provided to a range of government services , facilitating also the filing of documents at court .
For cases to be handled remotely, individuals need to be able to prove their identity if they are not physically present in court. To this end, several States have permitted the use of electronic signatures by amending, for example, criminal and civil procedural codes.95 Judges, too, need to be able to authenticate themselves and validate decisions if cases are handled remotely. Several States have introduced an electronic option through the use of e- signatures. In Norway, for example, legislation was amended to permit the adoption of decisions if there is a scanned copy of the presiding judge’s signature and the judge’s confirmation that the other judges have agreed with the decision.
2. Problem faced with IT Solutions
The speedy adaptation to a range of technologies inevitably generated problems, with different challenges experienced depending on the type of court and hearing. Procedures involving witnesses, children or individuals in detention required specific considerations.
Firstly, prompted by the hasty adaptation to the pandemic, technologies were introduced or expanded without adequate legal basis in some countries. In Bulgaria, for example, concerns have been raised regarding the legality of judges using videoconference technology for hearings on the basis of a governmental recommendation or decree . In Serbia, between 27 March and 1 April, courts used Skype for trials against those charged with breaches of COVID-19 related regulations following a simple instruction sent in a letter by the Ministry of Justice. Subsequently, a decree was signed on 1 April by the President and the Prime Minister to authorize remote hearings. As it lacked clarity, on 9 April the High Judicial Council issued a conclusion stating that it considers the decree applicable only to trials against those charged with breaches of anti-COVID-19 regulations .
Due to the speed of introduction and lack of general guidance to judges, there was also a lack of consistency in the use of IT solutions, including teleconference hearings; some judges used it, others did not, and judges used it differently. This resulted in confusion of court users and lawyers, and a considerable amount of arbitrariness. Problems included poor internet connection, the lack of necessary equipment among court users, systems that lacked the sophistication to cope with sudden demands, inadequate data protection, lack of training in the use of the new technology and lack of IT-assistance when difficulties arose.
3. Recent Updates regarding Videoconferencing
One of the ways in which courts have adapted to lockdowns and the requirements of physical distancing is the use of videoconferencing. Consequently, analysis of the challenges and effective use of videoconferencing to conduct virtual trials and other hearings has become increasingly became available, and guidance for judges in remote hearings has been produced by various judicial authorities. A variety of different platforms (such as Skype, Zoom, Microsoft Teams, Cisco’s Webex, Polycom Real presence, Cloud Video Platform, BlueJeans, PEXIP, TrueConf, etc.) have been used by the courts, sometimes on an experimental basis. Cost implications of available software means that, where courts do not purchase the necessary licenses, judges may be forced to use free-of-charge applications that do not provide for unlimited length and other features necessary for a remote trial hearing. Some countries and courts have been conducting virtual hearings for some time, and others are seeking to learn lessons from their experiences (see Appendix for list of resources).
Countries where videoconferencing was used in civil and criminal procedures included, among others, Austria, Croatia, France (where hearings were also held by phone), Hungary, Ireland, Kazakhstan (where Zoom and the application TrueConf were used), Portugal, Serbia, Slovenia, Sweden and the United Kingdom. In Ukraine, the State Judicial Administration decided to allow the use of various applications for videoconferencing rather than relying on one.
Participants, however, had to pre-register with a digital signature or login and password details . Some judges reportedly broadcasted hearings via YouTube to ensure public access . In North Macedonia, remote hearings were enabled by Government Directive during the state of emergency; however, the decision was described by judges as very vague. As a result, remote hearings were only reported from
the Basic Court Kavadarci and ended with the termination of the state of emergency there, which ended also the legal basis for remote hearings . In Greece, by contrast, there was no regulatory framework allowing for remote hearings; only the remote deliberation of cases among judges of, for example, three-judge panels were enabled during the partial suspension of court sessions (13 March to 6 May 2020), whereas all trials were postponed to a later date.108 While more detailed guidance on fair trial safeguards, including in the context of videoconferencing, may be added to this publication later, this section seeks to identify some of the key issues for judges and courts to consider.
D. COURTS DURING THE PANDEMIC
Courts used different methods and tools during lockdowns to determine what matters were urgent and could not be postponed . In addition , technological solutions were employed , often very quickly , to manage cases . The impact of the pandemic on other professionals who engage with the court , including lawyers , probation officers and translators , among others , has also required consideration .
1. Defining Urgent Cases
In light of the partial or full closure of courts in many countries during the height of the pandemic, the capacity of courts to process cases was reduced, prompting the question of which cases to suspend, which ones to continue and which ones to prioritize as urgent, sometimes referred to as the “triaging of cases”. Defining what is urgent varied from State to State and across different types of courts ; however, certain commonalities could also be found.
As noted above, some general guidance on the determination of urgency in the form of laws, regulations or recommendations is beneficial to avoid arbitrariness and ensure fairness, transparency and consistency, if at the same time balanced with flexibility to decide on a case- by-case basis. The International Commission of Jurists (ICJ) and some other organizations have provided helpful principles to assist in the determination of urgency.
Key criteria should include, first and foremost, the requirements of international law and the need to prevent irreparable harm.
Accordingly, urgent cases should include matters related to the violation of rights, to which remedial action would likely be ineffective upon delay. This is probable where individuals with specific vulnerabilities are at risk of physical or mental harm or neglect. It has been widely reported, for example, that women found themselves at an elevated risk of domestic violence during lockdown situations. Children, older persons and persons with disabilities were also more vulnerable to violence and neglect at times of emergency.
Any criteria for the suspension versus continuation of procedures, and for their prioritization should be subject to prior consultation with all legal professions, including judges and lawyers and their respective associations. They should be objective, fair, clear and transparent and should not undermine judicial independence or be discriminatory.
In light of human rights obligations, the consideration of cases of individuals deprived of their liberty also needs to feature on the list of priority cases, in particular persons after arrest and in pre-trial detention due to their fundamental right to be brought before a judge. Those who have been held on remand longer than they would have been without the pandemic should also be considered as urgent, bearing in mind the obligation of States and authorities to keep pre- trial detention as short as possible and the need to reduce
(or at least not add to) the numbers in detention . Indeed the UN Subcommittee on Prevention of Torture (SPT) has called on States in the context of the pandemic to “ review all cases of pretrial detention in order to determine whether it is strictly necessary in the light of the prevailing public health emergency and to extend the use of bail for all but the most serious of cases ” .
Other procedures dealing with potentially unjustified detention should also be considered a priority , not least in light of the risk of infection in usually cramped conditions in prison .
OHCHR and WHO have emphasized that persons deprived of their liberty face greater vulnerabilities as the spread of the virus can expand rapidly due to the usually high concentration of persons deprived of their liberty in confined spaces and to the restricted access to hygiene and health care in some contexts . Indeed , the UN Working Group on Arbitrary Detention has called on states to review “ existing cases of deprivation of liberty in all detention settings to determine whether the detention is still justified as necessary and proportionate in the prevailing context of the COVID-19 pandemic . ”
2. Who determines urgency ?
Who decides which cases are urgent varied from jurisdiction to jurisdiction . In some States , individual judges have determined what is urgent on a case-by-case basis , such as in Albania , with very general or no guidance from , for example , judicial councils . In Slovenia , on the other hand , a list of urgent cases was defined by law . In Greece , “ urgent cases ” to be handled by courts throughout the COVID-19 pandemic were explicitly defined by law .
A two-pronged approach , with decisions taken on a case-by- case basis by individual judges but based on general guidance and/or recommendations from judicial councils seems to be a sensible compromise . Regulation or recommendations regarding criteria to be considered are beneficial to avoid arbitrariness and ensure fairness, transparency and consistency . At the same time , a case-by-case approach is in keeping with judicial independence and is required to assess the criteria in any given case . Courts also need to retain considerable flexibility to adapt to the (often swift) changing nature of the pandemic and responses to it . In addition , the “ organ ” that takes decisions on urgency needs to be determined in advance, to prevent any tampering and inconsistency .
3. Knock-on impact of external pressures on the courts
Of course , courts do not operate in isolation . Consequently , the impact of the pandemic on other actors outside of the judiciary has also influenced the operation of courts . Probation services and community sentences have been suspended or significantly limited in most States during lockdown and when emerging from the pandemic . As the Confederation of European Probation noted , the pandemic resulted in , for example , reduced availability of staff , reduction or suspension of in-person meetings , and suspension or alternative delivery of community service sentences and treatment programmes . This has likely impacted , and may continue to impact , the courts imposition of community orders . There is also some concern that reduction in the availability of probation services may ultimately result in lengthier sentences where offenders will need more time to complete required activities .
Furloughing , closure of offices and redundancies have been experienced by various professions , including translators , interpreters and notaries . The organization Fair Trials noted that , as a result of severe restrictions of solicitors access to their clients , suspects in police custody were receiving poor quality advice . Lawyers offices have also been affected by closures or reduction in staff numbers , impacting access to legal assistance and advice . Some lawyers have attempted to address these challenges in innovative ways . In Kyrgyzstan , free legal aid was provided by phone , social media and email .
Little information is available to date about the accessibility of legal aid during the pandemic and whether it has been available , for example , in countering excessive emergency measures . In some countries , such as Portugal , social services are involved in the assessment of eligibility of legal aid (on financial grounds), which likely resulted in delays in decisions given the impact of the pandemic on staffing and workload of social services , and restrictions in accessing such services during lockdown . Such conditions may have led to delays in decisions on eligibility for legal aid and the expiry of appeal deadlines , resulting in increased self-representation or omission of the appeal altogether . A review of the accessibility and effectiveness of legal aid during and in the aftermath of the pandemic by States and courts is advisable .
- Clear criteria should be established , preferably by law , with a margin of discretion for judges , for the determination of an “ urgent case ” .
- The criteria should be objective , fair and clear and should not undermine judicial independence or be discriminatory .
- Criteria should be transparent and available to others for consultation , including members of the legal profession and their associations .
- Courts should retain flexibility to adapt to the pandemic . A case-by-case approach in determining what is urgent may be appropriate as a way of ensuring judicial discretion and independence .
- Guidance by law , regulation or recommendations can avoid arbitrariness and ensure fairness , transparency and consistency.
- The body taking decisions on urgency needs to be determined in advance , to prevent any tampering or inconsistency .
- Determining what is urgent should take into consideration those cases where defendants are in (pre-trial) detention , cases where immediate protection is required by women or other vulnerable groups from (domestic) violence (in particular during confinement in quarantine ), other urgent family disputes and cases relating to violation of measures concerning COVID-19 that imply irreparable harm . The availability of certain remedies is required by international human rights obligations and cannot be suspended .
- Those who have been held on remand longer than they would have been without the pandemic should also be considered as urgent .
- Other procedures dealing with potentially unjustified detention should also be considered a priority , particularly consider the risk of infection in usually cramped conditions in prison .
- Determining what is urgent should be a judicial decision , taken without prejudice to the merits of the case, and made simply and quickly . Any decisions should be communicated promptly to all stakeholders .
- Courts need to consider the impact of the pandemic on other actors outside of the judiciary , including the legal profession , probation , notaries , interpreters , etc .
- The accessibility and effectiveness of legal aid during and in the aftermath of the pandemic by States and courts should be provided . There should be the possibility of submitting and reviewing applications for legal aid online .
The outbreak of this pandemic disease i.e. Covid-19 is influencing litigation in numerous manners and has additionally injured the courts the nation over as judges , lawyers and litigants are attempting to accomplish justice under the law while adjusting open security . The quick spread of this infection has prompted the shutting down of Courts and Tribunals in the nation to maintain a strategic distance
i.e social distancing from human affiliation and to check the spread of novel coronavirus in the nation . In any case , the Central Government and Judiciary has found a way to give alleviation to the individuals who are confronting this uncommon test . Despite the fact that the courts have been closed down , the Hon’ble Supreme Court of India has chosen to take up urgent issues by means of virtual procedures with the goal that the advocates and litigants don’t need to show up genuinely in the court in this current circumstance . The Hon’ble Supreme Court of India has additionally guided the separate Bars to advance virtual procedures and e-filing . Indeed , even the Courts , taking cognizance of the difficulties
being looked by the lawyers to introduce under the steady gaze of the Court truly for documenting of separate Appeals , Petitions , and so forth and has expanded the time of constraint until its further order , with this , would like to battle against Coronavirus.
Author: AKSHAT RAJ
Editor: Kanishka Vaish, Senior Editor, LexLife India.