Beyond the emergency of the COVID-19 pandemic
In order to control the spread of the COVID-19 pandemic, EU Member States introduced sweeping measures which dramatically disrupted the functioning of criminal justice systems, and which will have a long-lasting impact.
With the help of international partners, Fair Trials launched the COVID-19 Justice project to track how justice systems and fair trial rights are being affected by these measures. As the pandemic is seemingly contained in Europe, countries are re-opening courts and returning to past practices. However, in many cases, emergency measures are being extended into long-term reform, or may be reintroduced in the event of a new wave of the pandemic.
The impact of the COVID-19 crisis on the functioning of courts: During the pandemic, countries closed courts, and/or delayed some hearings, to protect people’s health and safety by reducing the possibility of COVID-19 transmission at in-person court hearings. Many countries turned to remote hearings — using online video or audio-conferencing technology and other similar tools — as an alternative to in-person hearings in the context of both pre-trial and trial proceedings. Courts are gradually re-opening but, as a result of the measures adopted during the pandemic, they are now facing massive case backlogs and remote hearings are being proposed as a solution to promote time and cost efficiency in court functioning. However, we have identified specific concerns in relation to the impact of remote justice on the right to a fair trial, including on the effective exercise of defence rights.
Impact of COVID-19 on the ability to exercise defence rights: As a result of the COVID-19 pandemic, lawyers’ ability to consult with their clients was severely restricted. Remote access to a lawyer – in police stations, prisons or courts – has made it challenging for lawyers and their clients to interact with each other and to have confidential and effective communication. Remote communication can undermine the quality of legal assistance and the role of the lawyer in the prevention of coercion and ill-treatment during custody. Court closures and limited access to police stations also caused delays in gaining access to case files, where kept on paper. Countries in Europe were uneven in whether they adjusted practices to allow for electronic access. This inevitably influences the time and facilities that the defence has available for preparing their case and risks putting the defence in an even more unequal position against the prosecution. Finally, we have seen restrictions on access to interpretation services, which are fundamental to enable persons who do not speak the language of the proceedings to exercise their defence rights.
Policing of COVID-19 related offences: European governments rushed through new laws criminalising non-compliance with pandemic-related measures. States enacted new criminal offences and extended police powers, often in haste under a state of emergency, with little parliamentary oversight, raising serious rule of law concerns. Police in many countries actively enforced new (and old) rules on lockdowns and other health-related measures, and courts followed through on this policing by prosecuting an unprecedented number of criminal cases and punishing people with high fines. Such criminalisation raises serious concerns of abuse of power, unnecessary punitiveness, and the discriminatory application of laws against minorities and vulnerable people. Prosecutions, sanctions and fines imposed during the pandemic may subject people to insurmountable debts; they may also be left with a criminal record that impedes their ability to find a job or housing. In parallel, many governments pushed for ever more access to electronic information, including movements and contacts from mobile phones. While schemes (such as contact-tracing apps) may have a legitimate primary function, they often collect large amounts of sensitive data. The extensive surveillance and monitoring schemes which have been rapidly implemented pose a real and continuing danger to privacy, the rule of law and the fairness of criminal proceedings.
The impact of COVID-19 policies on people in detention: Incarceration poses a deadly risk to people who are detained and who work in prisons during the pandemic. Incarcerated people are vulnerable to infectious disease because detention facilities often provide limited access to sanitation and health facilities, have unsanitary conditions, and are overcrowded, making physical distance and isolation impossible. The EU is facing a long-standing crisis in prison overcrowding, which is driven in part by the excessive use of pre-trial detention. States adopted measures to reduce prison populations, but sometimes only on a temporary basis (e.g. by delaying the implementation of prison sentences until the pandemic is contained). We reported some positive judicial and prosecutorial practices. The increased use of alternatives to pre-trial detention brought to light creative solutions. There have also been reports of fewer arrests by the police. As a result, prison populations reduced in many European countries. However, despite the urgent need to speed up and sustain the release of incarcerated people, we did not see any generalised measures to reduce the number of persons held in pre-trial detention. Instead, this group was more often overlooked in release efforts, despite being legally innocent.