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Commentary: COVID-19- A Threat to Fair Criminal Justice?

This post was written by Alexis Anagnostakis, Barrister at Law and Member of the Advisory Board of European Criminal Bar Association.

The COVID-19 pandemic is decisively changing the way we work in criminal justice worldwide. The recently announced general measures suspending the functioning of the Courts across Europe are certainly moving in the right direction. However, the above suspension is partial, as the criminal courts will still operate for a certain category of "urgent" acts.

Specifically, in Greece, criminal trials are still taking place when they refer to flagrant acts (misdemeanors) for accused individuals who are in police custody. The above measure refers as well to felony trials with the accused individuals placed in pretrial detention, when the maximum period of pretrial detention is about to be exhausted or when the time of limitation for the acts under accusation is due to expire on or before 31.01.2021.

The above situation contradicts the general measures undertaken by the Government with a view to stemming the spread of the coronavirus. The country is in total lockdown. The government recently announced a general curfew of the population to combat the spread of coronavirus. A total prohibition of the public gathering of more than 10 people has been imposed.

 Under the above, no trial, however “urgent” it is claimed to be, can take place with the physical appearance of the parties involved, due to the elevated threat of contamination.

 The domestic criminal courts do not at this moment have the capacity to function at – and indeed provide lawyers or the accused with the possibility of participating from – distance (e.g. via videoconferences or Skype).

Most of the time, the above urgent criminal cases take place in difficult crowded conditions with a high risk of contamination (detainees, lawyers, judges, court staff, police guards).

The above curfew and the prohibition of gatherings pose impermissible obstacles for the parties to take part in the proceedings effectively and undermine the character of a public hearing, which every citizen is entitled to attend.

 I do not believe that the administration of justice should come at this threateningly expensive price.

Indicatively, in this situation, in the course of any trial process the defendant is impermissibly faced with a double risk of punishment: by the Court’s conviction on the one hand, and by the threat of contamination on the other. Defendants are obliged to endure a process through which they have to defend themselves in a state of anxiety and fear for their health.

Also, judges, lawyers, and court staff are all facing the same impermissible risk of contamination.

The concept of a Fair Trial should be found first of all as a process within the rules of safety for all parties involved.

In my opinion, it is reasonable to suggest that the policy behind this continuation of criminal cases is to avoid at any cost the release of the accused individuals, which would eventually happen  under any other circumstances in which trials could not take place. However, the statute of limitations and the release of the accused after the expiration of the maximum period are provisions of Law and in no case can the accused be blamed for that. On the contrary, it is the delays caused by the slow pace of judicial machinery which often causes these malfunctions.

In any case, a victim of contamination (accused, lawyer or magistrate) is a starkly disproportionate result against expediency, if achieving the latter means trying a case at any cost.

In view of the above, I suggest it is now the time to voice our concerns and recommend the undertaking of any measures necessary to enable hearings and proceedings to take place at distance, or hearings with guarantees of safety for all participants. Otherwise, full suspension of the criminal system must be recommended.

A second point I would like to raise is that, in the context of the announced measures, there are reasonable fears that in this time of crisis suspects, defendants and prisoners (vulnerable members of our societies who are demonised or ignored at the best of times) will be forgotten.

Due to detention conditions in the country’s prisons, COVID-19 is putting the health of detained individuals and many professionals at risk. So far, no effective measures for the protection of the country’s prison population have been implemented.

On the other hand, “emergency trials” without full respect of defence rights, under the pandemic, should not be accepted or tolerated.

We cannot let the coronavirus lead to an erosion of civil liberties, as can often happen in times of emergency.

If you are a journalist interested in this story, please call the media team on +44 (0) 7749 785 932 or email [email protected]

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