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Beyond the emergency of the COVID-19 pandemic

Lessons for defence rights in Europe

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In order to control the spread of the COVID-19 pandemic, EU Member States introduced sweeping measures which dramatically disrupted the functioning of criminal justice systems, and which will have a long-lasting impact. With the help of international partners, Fair Trials launched the COVID-19 Justice project to track how justice systems and fair trial rights are being affected by these measures. As the pandemic is seemingly contained in Europe, countries are re-opening courts and returning to past practices. However, in many cases, emergency measures are being extended into long-term reform, or may be reintroduced in the event of a new wave of the pandemic.

The impact of the COVID-19 crisis on the functioning of courts: During the pandemic, countries closed courts, and/or delayed some hearings, to protect people’s health and safety by reducing the possibility of COVID-19 transmission at in-person court hearings. Many countries turned to remote hearings — using online video or audio-conferencing technology and other similar tools — as an alternative to in-person hearings in the context of both pre-trial and trial proceedings. Courts are gradually re-opening but, as a result of the measures adopted during the pandemic, they are now facing massive case backlogs and remote hearings are being proposed as a solution to promote time and cost efficiency in court functioning. However, we have identified specific concerns in relation to the impact of remote justice on the right to a fair trial, including on the effective exercise of defence rights.

Impact of COVID-19 on the ability to exercise defence rights: As a result of the COVID-19 pandemic, lawyers’ ability to consult with their clients was severely restricted. Remote access to a lawyer – in police stations, prisons or courts – has made it challenging for lawyers and their clients to interact with each other and to have confidential and effective communication. Remote communication can undermine the quality of legal assistance and the role of the lawyer in the prevention of coercion and ill-treatment during custody. Court closures and limited access to police stations also caused delays in gaining access to case files, where kept on paper. Countries in Europe were uneven in whether they adjusted practices to allow for electronic access. This inevitably influences the time and facilities that the defence has available for preparing their case and risks putting the defence in an even more unequal position against the prosecution. Finally, we have seen restrictions on access to interpretation services, which are fundamental to enable persons who do not speak the language of the proceedings to exercise their defence rights.

Policing of COVID-19 related offences: European governments rushed through new laws criminalising non-compliance with pandemic-related measures. States enacted new criminal offences and extended police powers, often in haste under a state of emergency, with little parliamentary oversight, raising serious rule of law concerns. Police in many countries actively enforced new (and old) rules on lockdowns and other health-related measures, and courts followed through on this policing by prosecuting an unprecedented number of criminal cases and punishing people with high fines. Such criminalisation raises serious concerns of abuse of power, unnecessary punitiveness, and the discriminatory application of laws against minorities and vulnerable people. Prosecutions, sanctions and fines imposed during the pandemic may subject people to insurmountable debts; they may also be left with a criminal record that impedes their ability to find a job or housing. In parallel, many governments pushed for ever more access to electronic information, including movements and contacts from mobile phones. While schemes (such as contact-tracing apps) may have a legitimate primary function, they often collect large amounts of sensitive data. The extensive surveillance and monitoring schemes which have been rapidly implemented pose a real and continuing danger to privacy, the rule of law and the fairness of criminal proceedings.

The impact of COVID-19 policies on people in detention: Incarceration poses a deadly risk to people who are detained and who work in prisons during the pandemic. Incarcerated people are vulnerable to infectious disease because detention facilities often provide limited access to sanitation and health facilities, have unsanitary conditions, and are overcrowded, making physical distance and isolation impossible. The EU is facing a long-standing crisis in prison overcrowding, which is driven in part by the excessive use of pre-trial detention. States adopted measures to reduce prison populations, but sometimes only on a temporary basis (e.g. by delaying the implementation of prison sentences until the pandemic is contained). We reported some positive judicial and prosecutorial practices. The increased use of alternatives to pre-trial detention brought to light creative solutions. There have also been reports of fewer arrests by the police. As a result, prison populations reduced in many European countries. However, despite the urgent need to speed up and sustain the release of incarcerated people, we did not see any generalised measures to reduce the number of persons held in pre-trial detention. Instead, this group was more often overlooked in release efforts, despite being legally innocent.

Overview of recommendations

Remote hearings:

  • Remote hearings should remain an exception: Remote participation in criminal proceedings cannot be treated as equivalent to physical participation. Courts should only order remote hearings so that proceedings can be held without the physical presence of the suspect or accused person in court in exceptional circumstances.
  • Adequate technology: Detailed guarantees must be in place to ensure the good functioning and availability of appropriate technology such that suspects or accused persons are able to effectively participate in the proceedings.
  • Adequate facilities for the review of evidence: Where remote hearings involve the review of evidence, the defence must be given access to adequate facilities and technical support to inspect evidence and submit their own evidence before and during the hearing.
  • Protection of the presumption of innocence: Adequate measures must be in place to protect the presumption of innocence of the person appearing remotely and ensure that they are not presented in a way that makes them appear guilty, e.g. by appearing in prison clothing.
  • Cross-border cooperation: When possible, the arrest and surrender of suspects and accused persons in cross-border procedures should be replaced by less-intrusive cross-border cooperation mechanisms such as the European Investigation Order which allows for suspects or accused people to be interviewed remotely.

Exercise of defence rights:

  • Access to a lawyer: States should grant timely physical access to a lawyer, including to persons held in police custody or prison, by ensuring effective mechanisms for persons to communicate with their lawyer. Remote legal assistance should be used in exceptional circumstances and it requires specific safeguards, including facilities that enable free and confidential exchanges.
  • Access to case files: The defence should have full and unrestricted access to electronic case files in advance of hearings. They should be provided such access with sufficient time to prepare in advance of the hearing. National law should also promote access to justice by providing for the possibility of filing written submissions to the courts electronically.
  • Access to interpretation services: In deciding whether to allow for interpretation services to be provided remotely, courts should carry out a careful assessment of the person’s individual circumstances and the effect of remote interpretation on the fairness of the hearing.

Policing of COVID-19 related offences:

  • Protecting the rule of law: Parliaments should reconsider the necessity of resorting to criminalisation for public health goals. Legislatures should also consider proportionality and review new laws for clarity and quality, and conformity with a fair trial and other human rights. 
  • Review all prosecutions and fines: Judicial authorities must review and scrutinise the charges, convictions and fines applied during the crisis. They should lift any disproportionate, illegal or abusive sanctions and offer effective remedies accordingly.
  • Discriminatory policing: States must implement effective independent oversight mechanisms to collate, review and investigate complaints from people about abusive or discriminatory policing. Such cases must be investigated, prosecuted and sanctioned and people must be able to obtain an effective judicial remedy. 
  • Protection of privacy rights: Any new or extended contact-tracing or surveillance powers must be strictly necessary and proportionate in light of public health goals. Data collected must be clearly and strictly purpose-limited, accessible only to public health authorities for such purposes, and should not be used for criminal proceedings. This should also be subject to independent oversight and review. States must be transparent about such surveillance and data collection measures, and notify people whose data has been monitored, collected or intercepted; and provide individuals with access to an effective legal remedy.

COVID-19 and detention:

  • Alternatives to arrest: Police should not arrest and detain people for minor offences. Police should consider issuing citations instead of arrest.
  • Restrict prosecutions and motions for pre-trial detention: Prosecutors should not prosecute minor offences, and refrain from requesting pre-trial detention except in exceptional cases. Prosecutors should be required to consider information about the accused person’s health and vulnerability before deciding whether to apply for pre-trial detention.
  • Extended use of alternatives to pre-trial detention: The increased use of alternatives to pre-trial detention and creative solutions should be generalised and extended.
  • Judicial review of pre-trial detention orders: Courts should refuse to extend pre-trial detention orders without ensuring that this is strictly necessary and that no alternatives are possible. Courts should also examine current rosters of persons in pre-trial detention and pro-actively release as many as possible.
  • Access to defence rights in prisons: Access to lawyers should be guaranteed by prison administrations and police authorities to ensure the adequate preparation of pre-trial release motions and hearings.

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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