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Commentary: COVID-19 - What does all this mean for your ability to defend your clients’ right to a fair trial? – the Portuguese case

FairTrialsAdmin - April 7, 2020 - COVID-19 Updates, Commentary, Access to a lawyer

This post was written by Vânia Costa Ramos and Diana Silva Pereira, LEAP members and lawyers at Carlos Pinto de Abreu e Associados 

Due to the ongoing global COVID-19 pandemic, the difficulties that defence lawyers are dealing with and struggling against in pursuing the defence of the rights of their clients are systemic.  

In Portugal, defence lawyer face these difficulties whether their client is in prison or not. For example, the simple task of preparing the proceedings is now seriously hampered, since defence lawyers cannot visit their clients in prison, unless in duly justified urgent matters and situations, and should not be conducting face-to-face meetings with clients also outside of prison. In addition to that, consulting the case files in the Prosecutor’s office or in Court may only be done after making a special application to that authority and, if permitted, after scheduling a specific time and date in order to avoid too many persons being present in the facilities. Furthermore, many defence lawyers are currently undertaking full-time care and “teaching” responsibilities in relation to their children, which, if they are in sole practice, renders it very difficult to be able to work with the same speed as normally required.  

There is a lot of uncertainty about what will happen in the future (when and how trials will take place) and fear that pre-trial detention might de facto be longer than normal. Legislative changes (some with retrospective effect) are constantly suggested in the public domain by stakeholders whose interests are not always aligned, raising a climate of uncertainty about whether deadlines are running, or not, and about how cases will be dealt with. 

A new law has just been passed reiterating that urgent proceedings shall continue to be processed. If the physical presence of the parties, their representatives or other procedural actors is required, the practice of any act shall be carried out by appropriate means of remote communication, in particular, telephone conference, video conference or other equivalent. Hence, the legislator is making remote presence the equivalent of physical presence. As we know, this is not appropriate in many cases. When it is not possible to conduct these urgent proceedings remotely and the life, physical integrity, mental health, freedom or the immediate subsistence of the intervening persons is at stake, the law allows that proceedings take place in person in the Court premises, as long as it does not involve the presence of more people than as recommended by the health authorities and according to the guidelines of the High Council of Judiciary or the Public Prosecution Office. If none of these are possible, the proceedings and deadlines will be suspended. 

This new law also states that for non-urgent proceedings, certain acts (irrespective of requiring the physical presence of the parties, or not) may be conducted, if all the parties consider that they have conditions to ensure their practice through the computer platforms that permit them to be performed electronically or through appropriate means of remote communication (such as telephone conference, video conferencing or other equivalent). A final judgment may also be rendered, if the Court and the parties do not consider it necessary to carry out further procedural acts. 

Apart from many other issues, using remote means to make the trial possible might entail an interference with some rights of the accused, namely, i) to confront witnesses, ii) to be present at trial, iii) to meet privately with a lawyer during a trial,; iv) to actively participate in his or her trial, etc. Except for very simples cases, in which production of evidence is very short (or a confession of a very simple offencse), if the whole trial is done by remote means, the quality of the evidence and the immediacy principle will also be affected, which may ultimately affect fairness of proceedings. However, an accused in pre-trial detention might prefer to take that risk in order not to prolong his detention. Hence, it should be carefully assessed, by the Court and by the defence team, whether using such means is appropriate at all and, in our view, it should not be permitted to conduct a trial by videoconferencing without the presence of the accused if he or she does not agree to that. This is the very minimum. And, of course, it should be guaranteed that in those cases in which a procedure has to be conducted in person, the risk of contagion for all persons intervening is reduced by putting in place the adequate measures to protect them.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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