Digitization of the criminal process and the right to a fair trial

Context

As a result of the COVID-19 pandemic, the activity of the courts has been severely affected. During this period, the digitization of justice is under intense discussion, as being the only solution not to obstruct justice and at the same time to respect the rules of public health, effectively protecting the participants in the act of justice.

Although orality is a fundamental concept of criminal justice, in exceptional situations such as the period of the state of emergency, we consider that conducting legal proceedings through digital platforms is a sustainable solution to ensure the trial of cases within a reasonable time.

Fair Trials Organisation recently published a Guide for Respecting the Right to a Fair Trial along the COVID-19 pandemic period.

Fair Trials acts as a centre of expertise in respecting the right to a fair trial, relying on experienced staff based in London, Brussels and Washington D.C., working in partnership with the best local experts in several regions.

It has been argued that, as a rule, defendants should be able to participate in court proceedings in person and it is often crucial to be physically present in the courtroom during the trial. The absence of defendants in the courtroom seriously undermines their ability to participate effectively in criminal justice proceedings and the exercise of the right to defence.

Even in these extreme and unusual situations, there should be a strong preference for court proceedings to be conducted in person to protect the rights of defendants.

Specifically, non-urgent criminal proceedings should not take place if the defendant cannot be physically brought to court for public health reasons. However, criminal justice systems must continue to function during this global health crisis, and courts will have to resort to remote hearings to deal with urgent issues and prevent an unprecedented delay in cases that could harm the effective administration of justice in the future.

It was argued that when determining whether a court hearing should take place remotely or not, the following factors should be considered, inter alia:

• the length of the delays and their likely impact on the defendants‘ rights (especially if the defendant is in the pre-trial detention is likely to be extended);
• the nature of the hearing, inclusively:
  • the complexity of the case and the issue addressed;
  • the need to call witnesses; and
  • the likely impact of the hearing on the defendant’s rights (for example, whether it threatens the defendant’s deprivation of liberty).
• the availability and quality of equipment and systems used for communication between the court and the defendant; and
• the existence of deficiencies or other factors that could adversely affect the defendant’s ability to participate effectively in court proceedings.

In case there are strong justifications for the use of distance justice proceedings, distance hearings should only take place if there are adequate safeguards in place that do not affect the right to a fair trial.

The guide contains several recommendations on the following issues:

1. The right to be assisted by a lawyer:

A. For defendants deprived of their liberty

• All penitentiaries and detention facilities should have adequate facilities to ensure that all detainees have efficient and frequent access to telephones (and other permitted forms of distance communication). This measure may include upgrading or increasing the number of pieces of equipment to meet the increased demand.
• Prisons and places of detention should aim at making video conferencing facilities available to defendants.
• Confidentiality or defendant-lawyer communications should be strictly respected. Defendants should have access to secure spaces for confidential discussions, the defence strategy discussed with the lawyer should not come to the attention of prison auxiliaries or police. Communication channels should be secure so that calls cannot be intercepted or recorded.
• If there are restrictions on client-lawyer correspondence (including, for example, the frequency and duration of telephone calls), they should be significantly relaxed to compensate for the reduction in legal visits in person.
• The use of telephones (and other permitted forms of remote communication) should be made available free of charge to defendants when communicating with their lawyers.

B. Before, during and after the court hearing

• Defendants should be given sufficient time before, during and after court hearings to consult their lawyers.
• Courts should be provided with adequate facilities to allow confidential video conferencing or telephone calls between defence lawyers and defendants without time pressure. These could include separate court spaces with video conferencing equipment for lawyer-defendant discussions.
• Defendants must be given access to safe rooms or areas before, during and after hearings, where they can communicate with their lawyers in confidence.

2.  The right to participate effectively in legal proceedings

• If a defendant is not represented at a remote hearing, judges, prosecutors or court staff (as appropriate) should proactively assist the defendant to ensure that he or she has access to legal aid.
• Eligibility rules for legal aid should be reviewed to ensure that no defendant participating in remote court hearings is represented for financial reasons.
• The video equipment must simulate as authentically as possible the participation in the courtrooms. Defendants should be able to have a full view of the courtroom and be able to observe all participants present in the courtroom.
• Where distance hearings involve the submission or review of evidence, the defendant should be given access to facilities that allow him to inspect and present evidence during the hearing.
• Communication equipment and systems used for remote hearing should continuously provide decent sound and video quality.
• Hearings must be stopped if the connection is interrupted and continue only after the problem has been solved.
• Technical assistance should be readily available in courts and detention facilities to remedy defects affecting the quality and reliability of audio-visual communications.
• Defendants must be able to contact their lawyer in confidence during the proceedings to seek clarification or to receive instructions on the defence strategy.

3. Access to the case file

• Defendants and defence lawyers should be given access to case files in a way that allows defendants to exercise their right of defence effectively.
• Defendants must be given physical or electronic access to the case file free of charge.

4. Compliance with the presumption of innocence

• Defendants in detention should be presented in appropriate attire for court hearings and should be given access to facilities that allow them to wear appropriate attire.
• Defendants should be presented during video hearings with a neutral background, which does not suggest that they have been deprived of their liberty.

Conclusions

The digitization of criminal proceedings is a subject that should be under the scrutiny of public attention, regardless of the existence or not of the COVID-19 pandemic.

We consider that the digitization of criminal proceedings represents a necessity and a normal approach in the evolution of the justice system. The initiative of the Bucharest Court to introduce the possibility of holding court hearings by videoconference is commendable. We support the steps of the courts in this direction, steps that must consider the conduct of the process in optimal technical conditions and at the same time respect for the rights of persons participating in judicial proceedings.

However, given the pioneering nature of the digitization of the justice system, voices in favour of the accelerated digitization of criminal proceedings must pay greater attention to respect for the rights of the defence and the right to a fair trial, regardless of the manner and circumstances of criminal proceedings.