Impact of COVID-19 on rule of law in Hungary and Poland

Article by Fair Trials

Last week, Fair Trials participated in the European Commission targeted stakeholders consultation in preparation for its 2021 Rule of Law Report. The Rule of Law Report is the foundation of the European rule of law mechanism, a new process launched in 2020 to establish an annual dialogue on the rule of law between the Commission, the Council, and the European Parliament, together with Member States, national parliaments and civil society.

Through the consultation, Fair Trials raised concerns about the impact of COVID-19 on the rule of law in Member States criminal justice systems. Our contribution particularly focused on Poland and Hungary, two Member States where pre-existing issues have worsened with the health crisis.

The pandemic has severely restricted access to legal assistance for people detained in police stations and access to courts. Many court hearings have been postponed or moved online, which has had serious implications on defendants and their ability to exercise fair trial rights. Additionally, there has been an increase of police powers, resulting in widespread criminalisation, unlawful arrests, excessive use of force and excessive fines and prosecutions for alleged COVID-19 related offences.

Remote Pre-Trial Detention Hearings

In June 2020, Poland introduced remote pre-trial detention hearings by means of a permanent modification of the Criminal Code of Procedure. What was supposed to be an emergency measure due to the pandemic will now remain in force indefinitely. According to data made available to the Polish Helsinki Foundation for Human Rights (HFHR), such hearings are were held in practice in two Warsaw-based courts. In a complaint addressed to the European Commission in June, HFHR asserted that the system did not guarantee the possibility for detained suspects to effectively consult with lawyers. Concerns were also raised about the confidentiality of communication between lawyers and defendants, especially when prisons guards are present.

This is even more problematic in a national context where the overuse of pre-trial detention already is a structural issue condemned numerous times by the European Court of Human Rights, without effective measures taken to address it. More concerns about the impact of COVID-19 on access to courts and fair trial rights can be found in HFHR s report Human Rights in the Times of a Pandemic as well as in HFHR s country report included in Liberties submission for the 2021 Rule of Law Report (p. 123 and following).

In Hungary, a government decree was issued in March 2020, making remote hearings obligatory when procedural acts could not be postponed. According to data made available to the Hungarian Helsinki Committee (HHC), lawyers said that remote hearings are problematic for pre-trial detainees who are attending remotely, and on their own, from prison. This set-up may have detrimental effects on the defendant’s trust in their lawyers and removes the ability of lawyers to assess whether any undue pressure (including from guards who are present during the hearing) is applied on the defendant.

We are concerned that such measures have been introduced in both Member States without understanding the impact on defence rights of the increasing use of technology as a substitute to physical presence. Moreover, because pre-trial detention is intended as an exceptional measure, it must be regularly reviewed to ensure that it is still justified. Although access to judicial review by independent and impartial courts is a fundamental element of the rule of law, it is unclear whether the use of technology will ensure sufficient oversight.

Excessive Use of Police Force During Demonstrations

As reported in HFHR’s recent brief and report, the outbreak of the pandemic coincided with key events in Poland presidential elections, severe curtailment of the rights of LGBTQIA persons and the right to abortion. First introduced by a Regulation on March 13, 2020, the prohibition of assemblies of more than 50 persons was replaced by a total ban on assemblies, which was eventually lifted in May. In December 2020, the maximum number of participants was reduced to 5 persons, de facto depriving the right to assembly of its essence.

The police relied on these restrictions to repress any assemblies, issuing administrative fines of several thousand zloty. Moreover, the initiation of criminal proceedings against protesters was encouraged by the National Prosecutor, who considered that holding protests constituted the offence of posing a threat to the life and health. In some cases, motions for pre-trial detention were even made for violating COVID-19 regulations. During police interventions, tear gas and pepper spray were used in a disproportionate and unjustified manner. The National Mechanism for the Prevention of Torture (NMPT) even drew attention to the recurring accounts of beatings by police officers, flagrant abuses of direct coercive measures, in particular physical force and handcuffs, the demeaning, homophobic or transphobic treatment of detainees, excessive use of body searches and the performance of body searches in a manner violating the dignity of arrested persons.

In Hungary, as reported by HHC to the UN Special Rapporteur on the rights to freedom and peaceful assembly, one of the first measures adopted by the government in March 2020 was to impose a blanket ban on assemblies. Citizens have nonetheless held spontaneous protests in innovative ways. Car demonstrations were for example organised to express disapproval of governmental measures, by driving around and honking in the centre of Budapest. As a result, many protesters were fined, either for violating the rules for honking when driving or for violating the ban on attending demonstrations and leaving their homes despite the lockdown.

A full prohibition was imposed again during the second wave of the pandemic, during which the government increased penalties and authorised military forces to monitor the enforcement of the restrictions to prevent spontaneous physical protests. This is yet another blow to the Hungarian civic space, which had already shrunk alarmingly in the past decade, and an indicator that new extended police powers adopted during the pandemic are being used to further undermine the rule of law. More concerns about the erosion of the rule of law can be found in HHC and seven other Hungarian NGOs joint submission for the 2021 Rule of Law Report.

Fair Trials is concerned that abuse of police new extended powers undermines the rule of law, as judicial control over the legality and proportionality of police action by independent and impartial Courts is a key element of a fair criminal justice system.