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Commentary: Delays due to COVID-19 at Spanish criminal courts, but advancements in disclosure

FairTrialsAdmin - April 9, 2020 - COVID-19 Updates, Commentary, Delayed or accelerated proceedings

This post was written by Dr. Jaime Campaner, Managing partner at CAMPANER LAW and Professor in procedural and criminal law

At the end of March, the Ministry of Justice provided public agents who serve at Court (such as judges, prosecutors or officers) with 4,000 devices to allow them to work from home so as to guarantee the continuation of essential activities.

On March 29, the Ministry of Justice issued a resolution on essential services in Justice, ordering that officers who have stopped coming to court because of the restrictions must nonetheless be reachable and be available during their working hours so that they can swiftly attend court if required, or to manage any issue that may arise. 


Notwithstanding the above, in practice, and in my experience, there are criminal Courts throughout Spain which are not guaranteeing minimum services in a reasonable time. It has become the norm for courts not to pick up the phone and for motions in pretrial detention cases to take a long time. When a lawyer is lucky enough to get through to someone, they are then often informed that the officer of the court in charge of pretrial detention proceedings is not physically at court, and so they cannot do anything. Aren´t urgent proceedings supposed to keep going, remotely, to guarantee the continuation of essential services?

So far, in my professional experience, the most delicate situation is in the High National Court (which, among other matters, has exclusive competence in European Arrest Warrants (EAW) and Extradition cases throughout Spain). There are six investigating judges and one of them (and his team of officers) is on duty weekly to attend bail hearings and preliminary hearings on EAW and Extradition. Some very worrying news was published a few days ago and explains this delay and why it is not easy to contact the courts by phone: “Only one officer will manage five investigating courts in the High National Court”.

As opposed to private companies, who are applying the so-called ERTE (temporary redundancy agreements), the court staff in the justice system are still officially working and receving their salaries, so the delays to urgent criminal proceedings do not have any reasonable justification.

In addition, the Ministry of Justice announced measures to guarantee digital services at duty court, so that face-to-face activities can be reduced to the essential minimum.

With regard to lawyers being able to come to police stations, there have been updates in the last days:

On March 29, the President of the Supreme Court of the Madrid region issued guidelines in regard to this. The President recommended sending the case file to the appointed lawyer by email in advance of any meeting, whether in person or virtual. Once received and read, the lawyer may decide if their physical attendance is necessary. Following this, there should be a private and confidential lawyer-client interview prior to any questioning. If there are the means to carry this out by video-link in the police station, it should be done remotely. Otherwise, it could take place by phone, using a police station landline, and the call identification should be recorded in the call log and in the corresponding police report.

We should be positive and see a good takeaway from this situation: in the end, the right to access the case file will be effective in terms of the Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (articles 6 and 7). And this should be a milestone, because there is no reason to stop this good practice to guarantee the right to defence when the pandemic ends. There is no better way to demonstrate the extent of disclosure than to have the information regarding the case by email. This will end the eternal debate over disclosure and will guarantee the right of information and so the right of defence.

 

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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