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Commentary: Preserving procedural safeguards during the COVID-19 crisis- a Serbian perspective

FairTrialsAdmin - April 29, 2020 - COVID-19 Updates, Commentary, Court closures, Remote Justice

This post was written by Serbian lawyer Vladimir Hrle.

Much has been said recently on the need for preserving the procedural safeguards during extraordinary times particularly in jurisdictions where state of emergency has been declared. Usually, these situations require derogations from certain human rights standards and only to the extent necessary. It is however highly debateable what is the extent necessary of these derogations and whether they could actually alter some of the basic and fundamental rights of defence.

It is necessary to balance the public interest of conducting fast and safe proceedings (i.e. without the risk of expansion of infection) during state of emergency introduced due the Coronavirus with the need for preserving procedural safeguards of the participants to the proceedings.

Currently, only urgent cases are tried i.e. pre-trial detention and cases related to breaches of emergency rules relating to the COVID-19 epidemic and for offences committed during the state of emergency.

As a starting point, it should be clear that trial by video conferencing has no legal base in the 2013 adversarial Criminal Procedure Code. One of the fundamental rules of the Code derived from the Constitution is that a defendant who is accessible to the court may be tried only in his presence. The Code simply does not allow conducting a hearing without the presence of a defendant save for exceptional situations: (i) where the defendant has been duly summoned and fails to appear at the trial or to justify his absence - if according to the evidence on the record a decision on dismissing/rejecting the charges would obviously be reached; (ii) contempt of court; (iii) trial in absentia.

In addition, the Code stipulates that only so called “special sensitive witnesses” can be questioned by way of video link. If the authority conducting proceedings decides to examine this type of witness using technical devices for transmitting images and sound, the examination is conducted without the presence of the parties and other participants in the proceedings in the room where the witness is located.

However, the Serbian Government has adopted a decree by which during the state of emergency, should the judge find that the presence of the accused at the main hearing would be problematic because of the risk of expansion of infection, it could decide that the defendant's participation can be ensured through a video link, if this is possible given the technical conditions at the respective court.

In addition, as the case load of the courts is nowadays severely reduced, it appears that the trials could have been conducted in large court rooms thus preserving social distancing measures. On the other hand, social distancing rules were hard to maintain in ongoing urgent trials during pandemic as defence lawyers were often waiting for their respective hearing in the lobby with other defence lawyers.

During the trials by video link in those urgent cases, the main deficiency is related to cross-examination as the defence cannot effectively conduct this action via Skype video conference nor confer with the defendant.

This raises obvious concerns in terms of fairness of the proceedings as the defendant cannot effectively participate to the proceedings. While to some extent it could be argued that in the investigative phase of the proceedings the video conferencing could be used without affecting the fairness of the proceedings, this cannot be said for the main hearing. The adversarial nature of the main hearing simply entails an active participation of the defendant especially in the context of conducting an effective cross-examination and assessing the credibility of a witnesses.

Finally, it goes without saying that under current ECHR case law the requirement of defendant’s presence is almost absolute, even though it was held that some “exceptional circumstances” could alter this. These fundamental standards developed further through ECHR case law are part of legal and public order in Serbia so the courts should be bound by these anyhow.

It is also expected that the ECHR will reach a new position on this soon as there should be increased applications for Article 6 violations. The Court in Strasbourg should then, as stated, balance the public interest of conducting fast and safe proceedings during state of emergency in some member states with the need for preserving procedural safeguards of the participants to the proceedings.

 

NOTE: The views and opinions of Vladimir Hrle expressed here are personal, and do not necessarily represent the opinions of current or past employers or colleagues, or professional associations, or organizations with which Vladimir has collaborated

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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