The COVID-19 pandemic, and responses to it, have had an unprecedented impact on criminal justice across Europe. Access to police stations and courts has been severely restricted, and many court hearings were postponed or moved online. These measures had (and in many cases, continue to have) serious implications for the ability of persons arrested, prosecuted, or detained to exercise their fair trial rights.
Countries have slowly re-opened courts and returned to past practices. However, in some cases, emergency measures are being extended into long-term legal or practice changes. It is therefore crucial to understand the impact of COVID-19 changes on defence rights, in particular the increasing use of technology as a substitute to physical presence, before engaging into long-term changes.
With the help of LEAP members and partners from the JUSTICIA network, Fair Trials conducted a survey of criminal justice actors, mainly defence lawyers, but also judges, prosecutors and law enforcement agents, in Belgium, England and Wales, France, Italy, Latvia, Netherlands, Romania and Spain.
The results, published in this report, show that COVID-19 measures have had a broadly negative impact on the ability of people to exercise their defence rights and, in particular, on access to legal assistance at police stations and during remote hearings. The issues raised included:
- severe restrictions on lawyers’ ability to consult with clients during detention was severely restricted;
- increased isolation of detained persons because of restrictions to visits from friends and family;
- concerns about the confidentiality of lawyer-client conversations in places of detention; and
- limits on the ability of clients to effectively participate in court proceedings and to challenge evidence.
The impact on pre-trial detention varied from state to state. In certain locations, delays in court review hearings and investigations resulted in longer pre-trial detention periods, while the unsanitary and overcrowded conditions in detention facilities led some judges to make fewer pre-trial detention orders.
Beyond these general trends, there were discrepancies between countries and even within the same country, between different police stations and between different courts. The impact of the pandemic on criminal proceedings highly depends on the specific measures put in place by the authorities, the technology available and sometimes, the goodwill of individual police officers, judges and lawyers.
This survey does not intend to present a comprehensive overview of criminal justice issues and trends in Europe during the pandemic but instead show how legal practitioners in Europe experienced and understood the policy changes implemented because of COVID-19, with the hope that these insights will inform future reforms. These reforms include COVID-19 related policies that some jurisdictions are looking to retain or expand, including measures relating to the digitalisation of justice. Responding to the challenges faced by EUs judicial systems during the COVID-19 crisis, the European Commission will be initiating legislation as part of the Roadmap on Digitalisation of Justice in the EU, which is expected before the end of 2020.
This survey complements the Fair Trials’ report: Beyond the emergency of the COVID-19 pandemic, Lessons for defence rights in Europe, June 2020.
