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Commentary: Silver lining to a very dark cloud: what could we learn from the COVID-19 crisis? A French perspective

This post was written by Constance Ascione le Dréau, a French lawyer.

Why not revel in the cliché, and remind ourselves that the etymology of the very word “crisis” is a turning point: a time to decide, a time to change. This sanitary crisis is no exception, and could also be, if we so allow it, a time for our European judiciaries to change, for better and not for worse.

There are indeed reasons to fear the worst. Across Europe, practitioners are alarmed at major human rights violations, including to a fair trial, as a result of new norms and laws passed in the flick of an eye. There are causes for concern, and we need to name and resist such violations. However, some of the changes resulting from this dramatic situation, glimpses of hope, should be acknowledged, praised and encouraged.

As a French practitioner, I marvel at clerks, prison personnel, prosecutors or judges, who are working in the toughest conditions, yet -for most part- show a willingness to find solutions, and to solve problems, which is edifying. Paradoxically, our interactions sometimes seem easier than before all this; after all, what is left of antagonistic postures or arbitrary pettiness when this virus brings us all back to our common and fragile condition? Emails and conversations now mostly start with some words to express genuine concern for the other person’s health, well-being: why not carry on with that?

There are also things we can learn from how technology is being used at the moment. In France, practitioners have already denounced some of the measures taken in that respect, and rightfully so. How could we not be concerned, when it is now possible to use audiovisual telecommunication for all criminal hearings, disregarding the consent of the parties [1]? The right to be physically present at a hearing and be heard by a judge should not be impaired, because it is essential to the very nature of criminal proceedings. When we all suffer from not meeting up with our friends and family members, even though we can talk with them over the telephone or through videocalls, how can we underestimate the importance for a suspect to meet his or her judge? Hearings via video link should remain exceptions, and not become the rule.

Nonetheless, some technology-based changes could turn out to be real improvements, simplifications for everyone, and could help save time and money for our judiciary system, sadly stifled by a lack of resources. For instance, it is now possible, in France, to file an appeal by email [2], instead of having to go to court to do so. Similarly, at the Paris Court of appeal, some files can now be accessed online, without the need for the lengthy and time-consuming process to get a copy of the file, or to go to court to study the file. We should naturally remain vigilant, and ensure that these technological changes do not undermine confidentiality, do not turn out to be even more time consuming, and protect the rights of all parties. But granted this, why not keep such changes after this sanitary challenge is overcome?

Yet another double-edged issue arises in these troubled times: detention. In France, currently 64.439 persons are being detained [3], in prison-facilities which are dilapidated, and in detention conditions that have been criticized by the ECHR on numerous occasions. Only in January this year, the Court found that French detainees were exposed to inhumane and degrading detention conditions, particularly due to overcrowding [4]. When some prisoners have around 2 sq.m. of personal space, there is no doubt that they cannot comply with the 1m distancing requirement advocated for by the government. Numerous NGOs, public bodies and institutions, including the French Ombudsman (Défenseur des droits), the General Controller for prisons (Contrôleuse Générale des lieux de privation de liberté) and the President of the National Commission for Human Rights (Commission nationale consultative des droits de l’Homme) have denounced, in the present context, the overcrowding prevalent in prisons and called for action [5].

Despite all this, the rules for pretrial detention have been amended in France, and not in a good way: maximum time periods have been extended, and in some cases, detentions can be now prolonged without any hearing or discussion. Where does the rule of law stand, when someone who has not been tried, and is thus presumed innocent, can be detained without even being heard?  How can we, defence lawyers, explain this to our clients? Particularly when we know that detentions are mainly motivated by the need for investigation, and most investigation proceedings are, in practice, suspended due to the sanitary crisis…

But even with respect to detention, there is hope in these dark times. By 7th April 2020, the prison population had dropped by 8.000 detainees, bringing the overcrowding rates from 119% on 1st March 2020 to 107% to date [6].  Half of this reduction is due to the slowing down of judicial activities, resulting in fewer people being sent to jail. But half of this decrease is the result of measures taken by the government, which give specialized judges (Juges d’application des peines) the possibility to release detainees with less than 2 months to serve providing they have been sentenced to less than 5 years, or the possibility for judges to convert a remaining sentence of 6 months into other obligations, such as an electronic bracelet [7]. While we must regret that it took a deadly virus to get these 8.000 people out of jail and to make prison -a bit more of- a measure of last resort, particularly for short sentences, we can also take comfort in the fact that at the end of this crisis, our prisons should be by and large less overcrowded, and we will be less inclined to see prison as the most adequate response to crime.

Lots to do, lots to be done, things to learn, and paths to take, plenty of room for change and  improvement. Let’s get down to it and take heart from this -slightly misogynist?- quote from the Bard of Avon, “Wise men ne’er sit and wail their loss but cheerily seek how to redress their harms.”.

[1] Art.5, Government ruling n°2020-303 dated 25th March 2020.

[2] Art.4, Government ruling n°2020-303 dated 25th March 2020.

[3] Figures given by the Minister of Justice before the National Assembly (Assemblée Nationale) on 8th April 2020.  

[4] ECHR, J.M.B and others v. France, 30th Jan. 2020.

[5] Article published in Le Monde, 20th March 2020, Coronavirus: “Sauvegardons les droits fondamentaux pendant la crise sanitaire ».

[6] Figures given by the Minister of Justice before the National Assembly (Assemblée Nationale) on 8th April 2020.  

[7] Chapt.VI, Government ruling n°2020-303 dated 25th March 2020.

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