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Commentary: iProcess – Judicial emergency in Spain during the COVID-19 crisis

FT Admin - June 16, 2020 - COVID-19 Updates, Commentary, Remote Justice

This post was written by Mar Jimeno- Bulnes, Professor of Procedural Law, University of Burgos.

On June 9th, 2020, at 11:30 am, Spain reported 24 additional cases to the total number of 241.717 people infected with COVID-19, 27.136 deaths and 150.376 recovered (source: Diario el País).  In fact, Spain is the second country in terms of the number of people infected after Italy, at least in Europe. Thus, the COVID-19 pandemic has caused a major global crisis in which Spain was no exception. For this reason, for the second time in the history of Spanish democracy since the Constitution 1978, the state of alarm was declared through Royal Decree 463/2020, of 14 March, which has now been extended till next June 21st pursuant to Royal Decree 555/2020, of 5 June. In the meantime, Spain has enacted more than 200 exceptional rules in order to regulate different areas and sectors (justice included), which are not easy to understand. One of these areas is the administration of justice itself, which has been seriously affected by COVID-19.  Consequently, the health emergency has led to a judicial emergency too.

The main concern of the Spanish government regarding the judicial system is undoubtedly the collapse that is approaching during and after the state of alarm. In fact, Royal Decree 463/2020 declaring the state of alarm imposed the stay of criminal judicial proceedings, except for the processing of habeas corpus claims and proceedings relating to detention measures. Without a doubt, the judiciary, through the General Council of the Judiciary Branch, promoted a Clash Plan (Plan de Choque) with more than one hundred measures in order to deal with the looming judicial chaos. Nevertheless, this Plan caused great controversy among the different professional sectors (judges, prosecutors, court clerks, lawyers and judicial officials), which has also been echoed by the media.

Further, the Minister of Justice enacted several organisational and judicial measures pursuant to the Plan, in particular Royal Decree-Law 16/2020 of 28 April, which was subject to criticisms by the same professional sectors. In this context, the “star measure” is undoubtedly so-called “telematic” (i.e. remote) justice by contrast to the face-to-face justice now in place. The section headed “holding of procedural acts through telematic presence” (Article 19) is contradictory in itself, as it seems obvious that justice cannot be “present” and “telematic” at the same time, otherwise the Latin phrase contradictio in terminis acquires genuine meaning. In any case, the new regulation establishes a new model for criminal justice which extends beyond the COVID-19 crisis, replacing the model of justice hitherto known as, “iJustice,” as opposed to on-site justice and nominally differentiated from the European e-justice model.  

In this way, the general technological measure in Article 19 provides that, “in general, all procedural acts will be carried out preferably by means of telematic presence, provided that the Courts, Tribunals and Public Prosecutors' Offices have the technical means to do so," which may not always happens. There is a significant difference in budget allocation across the various Spanish regions to deal with judicial administration, more now in times of economic crisis resulting from the COVID-19 pandemic. In summary, it is not certain that there will be a greater investment in technological equipment than there is at the moment. Nor is there a common electronic procedural system for all Spanish courts, since in some cases their organisation depends on the central government and in others on the regional governments, not to mention the computer "crashes" that some of these systems sometimes suffer.

There is only one exception to remote proceedings: "the physical presence of the accused at felony trials," i.e. those ones which are punishable by, inter alia, imprisonment for more than five years. However, the physical presence of the accused is only required at the trial but not at any other time or for other purposes even in the case of serious “felony” crimes. In respect of less serious crimes punishable by less than five years of imprisonment, the general rule of “telematic presence” applies overall. What will be then the consequences of the new modus operandi of courts and tribunals for defendants and defence lawyers in Spain? How will they be able to face the possible harmful effects of the new policy? Some of these effects are already emerging.

Firstly, real obstacles to the exercise of certain basic procedural guarantees have emerged. Together with the impairment of the rights of defence, restrictions of important procedural principles such as immediacy and publicity also arise. In relation to the rights of defence, experience shows that judges cannot always “hear and understand” the defendant, for example and specifically, in an essential pre-trial detention procedure which involves the first judicial appearance of the defendant before the Judge of Guard after police detention. The technological difficulty is now compounded by the difficulties arising from the adoption of protection and hygiene measures as a result of the COVID-19 pandemic, i.e. the requirement that the detainee wear a mask, which makes his or her statement even more inaudible. The rights of defence are further restricted when the defendant is standing at a distance from his or her lawyer. This is the case when declarations are made through videoconference involving the defendant’s presence in the police station and the lawyer’s presence not at the police station, but at the courthouse with the judge. In such cases of geographical distance between the lawyer and the defendant, confidential consultations between them, as legally required, cannot take place despite the precautions foreseen by the Guide for the Conduct of Telematic Legal Proceedings drawn up by the General Council of the Judiciary Branch, approved on May 20th, 2020 (Section 34).

In relation to the restrictions of the principles of immediacy and publicity, the first principle is compounded by the difficulty of preserving the authenticity and confidentiality of the various means of presenting evidence such as the statements of the parties, the witnesses (including the victim) and the experts. The statements are made without prior contact between them or prior knowledge of the conduct of the trial sessions. This undoubtedly impacts the court's assessment of the evidence despite the recommendations to that effect made by the Guide for the Conduct of Telematic Legal Proceedings, including the creation of so-called "virtual waiting rooms” (Section 43).

Secondly, the principle of publicity, guaranteed by Article 120 (1) Spanish Constitution as a general procedural rule, guarantees the access of third parties and the general public to court hearings. The Guide for the Conduct of Telematic Legal Proceedings foresees the creation of a "virtual notice board" containing information on the date, time, type of action and procedure with the facilitation of a “password or link, which will be provided once the person concerned is accredited, either physically or virtually, to the court or tribunal” (Section 41). But once again, neither all the Spanish population is familiar with new technologies nor has previous experience shown that the computer resources of courts and tribunals are always operational. Moreover, the restriction of the principle of publicity occurs in respect of hearings held in person as a result of the measures adopted by the aforementioned Royal Decree-Law 16/2020 during the COVID 19 pandemic: “in order to guarantee the protection of people's health, during the state of alert and up to three months after its end, the judicial body shall order, taking into account the characteristics of the courtrooms, public access to all oral proceedings” (Article 20), making it possible for courts to restrict access.

In conclusion, the telematic or remote procedure should remain complementary and reinforcing but never an alternative or substitute to the face-to-face process, especially in criminal matters. However, this is not the line that the Spanish Ministry of Justice adopted, that will lead instead to the digital transformation of the administration of justice, taking advantage of the COVID 19 health crisis. Welcome to the world of “iProcess,” soon to be an app on our smartphones.

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