CEPEJ: COVID-19 Makes the impossible possible

By Alain Nuée

The CEPEJ met virtually on 10 June to analyse the effects on judicial systems and draw lessons from the health crisis.

The essential measures to protect judicial staff against the pandemic have resulted in a strong slowdown of the activity of the European courts, whereas they saw their litigation increasing due to the very fact of confinement (domestic violence, contraventions of health rules).

The extent of this paralysis varied from one country to another, with countries that placed great emphasis on oral proceedings being more penalised than others, while countries that made extensive use of information and communication technologies (ICTs) covering the entire judicial process more easily maintained a sustained level of activity.

Three types of response to this crisis have been formulated, together or separately, by States and jurisdictions to this crisis:

  • Binding temporary exceptional legislation extending time limits and simplifying procedures, sometimes even infringing fundamental rights defined by the ECHR (e.g. extension of detention without the intervention of a judge).
  • The definition of similar priorities in the handling of cases (emergency, summary proceedings, family, preservation of liberties and protection of persons, commercial).
  • The massive and combined development of the dematerialization of procedures, video-conference hearings, teleworking and electronic signatures.

Some States, such as the Baltic States, which have recently turned massively to new information technologies in judicial matters, have resisted the crisis particularly well, while others, which are well endowed but which, like France, have not ensured the continuity of information processing, for example, by not allowing registry staff to work at home on court applications, have exposed themselves to significant backlogs and delays, even though the predominance of written procedure (except in court sessions and in a limited number of correctional cases) was a very favourable factor for these countries.

By overturning the cultural habits identified as one of the main obstacles to the combined use of all information and communication techniques, the containment measures and the absenteeism linked to it demonstrated to the judicial world not only that the combined use of these techniques was the only means of guaranteeing the normal functioning of the institution in the event of a pandemic in 90% of proceedings, but also that they were in normal times likely to improve the efficiency of justice by allowing the actors in the trial to work at a distance.

The lessons learnt from this crisis and the massive and combined use of ICTs have enabled the development of a new vision of justice services but call for new recommendations from the CEPEJ which has already published a first report on the use of ICTs based on statistical data 2014-2016 and on 14 June 2019 a second report entitled ”toolkit”.

It is indeed essential to ensure that hearings and virtual procedures that allow access to the judge offer the same protection of rights. To this end, it is necessary in particular to provide full information to litigants and those involved in the proceedings on the measures implemented to avoid infringements of fundamental rights, to provide the courts with a sufficient number of qualified staff to ensure the proper functioning of the tools, to train those involved in their use, to ensure the protection of privacy and the confidentiality of exchanges between lawyers and clients when using these new forms of communication.

This new vision of justice services, which is now widely accepted, must not, however, cause us to lose sight of the fact that in a limited number of cases, the physical presence of the parties and witnesses must be maintained because of the added value that such appearance brings.

 

Editor’s note* The consequences of a cyber-attack could also be mitigated by retaining the possibility of a rapid return to the presence of the parties.