COVID-19: A Threat to Fair Criminal Justice?

The COVID-19 pandemic is decisively changing the way we work in criminal justice worldwide.

The recently announced general measures suspending the functioning of the Courts across Europe, with a view to stemming the spread of the coronavirus, are certainly moving in the right direction.

However, as I understand it, the above suspension is partial, as the criminal courts will still operate for a certain category of "urgent" acts.

It is also common knowledge that most of the European criminal courts do not at this moment have the capacity to function at – and indeed provide lawyers with the possibility of participating from – distance (e.g. via videoconferences or Skype). In some countries urgent criminal cases (e.g. flagrant acts) are still taking place in difficult crowded conditions with a high risk of contamination (detainees, lawyers, judges, clerks, police officers).

Despite their urgency, I do not believe that the administration of justice should come at this threateningly expensive price.

Indicatively, in this situation, in the course of any trial process the defendant is impermissibly faced with a double risk of punishment: by the Court’s conviction on the one hand, and by the threat of contamination on the other. 

Defendants are obliged to endure a process through which they have to defend themselves in a state of anxiety and fear for their health. 

Also, judges, lawyers, and court staff are all facing the same impermissible risk of contamination.

The concept of a Fair Trial should be found first of all as a process within the rules of safety for all parties involved.

In view of the above, I suggest it is now the time to voice our concerns and recommend the undertaking of any measures necessary to enable hearings and proceedings to take place at distance, or hearings with guarantees of safety for all participants. Otherwise, full suspension of the criminal system must be recommended.

A second point I would like to raise is that, in the context of the announced measures, there are reasonable fears that in this time of crisis suspects, defendants and prisoners (vulnerable members of our societies who are demonised or ignored at the best of times) will be forgotten.

“Emergency trials” without full respect of defence rights, under the pandemic, should not accepted or tolerated. 

We cannot let the coronavirus lead to an erosion of civil liberties, as can often happen in times of emergency.