Philip Buisseret, Secretary General of the Council of Bars and Law Societies of Europe (CCBE), discusses the impact of the COVID-19 pandemic on justice systems across the EU and what needs to be done now to address these challenges.
Disruptive impact on the justice sector
The COVID-19 crisis has had a disruptive impact on our societies worldwide and this has also been felt in the justice sector.
It may be safe to state that there was no contingency plan foreseen for justice to cope with a crisis of such a scope and to ensure citizens a continued access to justice and to courts and tribunals. Whereas supermarkets and grocery stores had to adapt within 24 hours to the social distancing rules and confinement measures, courts and tribunals in some member states are even today, three months later, still not able to comply with these rules and measures.
The confinement measures and restrictions concerning justice and lawyers have varied amongst member States. Indeed, in some of them, justice and the legal profession have been designated as ‘essential’ and were therefore subject to less stringent confinement and travel restrictions (although cross-border travel for lawyers was nearly impossible everywhere in Europe, halting temporarily the principle of free movement of lawyers).
Depending on the availability of appropriate resources, urgent cases have been dealt with, mostly by using video conferencing capabilities for organising non-physical, remote, hearings, interrogations and other proceedings, etc. Nevertheless, during the confinement period, most European judiciaries postponed numerous cases and proceedings. This has led to access to justice and human rights being suspended or stopped. The right of citizens to due process within a reasonable time – a fundamental right enshrined in several constitutional and international texts (e.g. Art 6 ECHR and Art 47 EU Charter of Fundamental Rights) – has been interrupted. This is not only undesirable but intolerable in a European Union based on the Rule of Law and respect for fundamental rights.
The need for urgent reactivation of justice systems
Since the dawn of civilisation, delivering justice has been a prerogative of the State. As a public necessity, justice is subject to the requirement of continuity. European institutions and national governments should recognise that access to justice constitutes an immutable duty for member States. The CCBE therefore has urged them to invest in and make justice accessible for all parties in a safe and healthy manner, including ensuring access to prisons for defence lawyers.
It is necessary to establish EU-wide rules on deciding which cases do not require the physical presence of parties and/or lawyers in the courtroom.
For physical hearings and proceedings, rooms should be adapted to allow for social distancing and personal protective equipment made available for parties. For proceedings and hearings which do not require physical presence, measures must be taken to ensure the required publicity, for parties to consult their lawyer privately, and other fair trial rights. Where technologically supported hearings would otherwise have been in public, a permanent record of such proceedings should be made.
Due to the cancellation and postponement of cases, the judiciary will face a significant (additional) backlog, which will further negatively affect legal certainty and societal peace. Sufficient court staff and personnel are needed to eliminate this backlog as soon as possible.
Investments should be made in IT development to allow remote access to justice in court case management in order to increase transparency and speed, promote accessibility for parties and their lawyers, and streamline case load.
The justice sector needs financial support
It is to be feared that due to the economic consequences of the coronavirus crisis, more citizens and entities will need legal aid support for accessing justice. It is therefore important for the wellbeing of the weakest in our societies to enhance capacity and to increase the budgets for legal aid.
Furthermore, whereas judges, prosecutors and law enforcement are funded by the State and will continue to be paid, this is not the case for lawyers who defend citizens’ rights and represent their interests before courts and administrations. In this time of crisis, this affects negatively the ‘equality of arms’.
In particular, sole practitioners and small and medium sized law firms – which are often the first point of contact in justice and rights defence – have suffered dramatically from the coronavirus crisis and confinement, due to a lack of new cases and late or non-payment of invoices by clients, themselves adversely economically impacted. While statistical data is not yet available, initial soundings taken suggest that of the order of 25% of European lawyers are significantly adversely affected.
It is mostly sole practitioners and small law firms that address the justice needs of the weakest in our societies: families, vulnerable adults and minors, asylum seekers, etc. The disappearance of ‘their’ lawyers will be to the detriment of the weakest. Citizens will suffer when their lawyer is no longer there. Access to justice for everyone – especially the poorest – is a core value of societies based on the Rule of Law. The contribution of lawyers in ensuring access to justice is vital for the respect of the Rule of Law.
Immediate reactivation of the judiciary to the greatest extent possible will allow citizens and entities to regain full access to justice and to legal certainty. This will accelerate the return to normality for our society and sustain the recovery of economic activities.
No Rule of Law without an effective functioning of the justice system
An effective justice system is a cornerstone of human rights and of economic activities, both currently under great threat.
The crisis also creates a unique opportunity to review the organisation and functioning of justice systems and to use IT platforms to improve its accessibility and performance.
Finally, an effectively functioning justice system is also a guarantee for the proper functioning of checks and balances in a democratic system based on a separation of powers. The absence of such judicial control – or even a sporadic working of this control – opens the door for abuses of executive powers which, in many countries, have been intensified.
This is an even more compelling reason to reactivate justice systems as soon as possible.