Version 4 May 2020
Issues to be explored could be structured as follows:
1) Matters related to health and safety of judges, court staff and parties of judicial procedures:
Possible arrangements and protocols of "social distancing" when re-opening courts and restarting actual hearings, including arrangements and protocols relating to public attendance of hearings. Return of judges to court could be phased, or alternating on different days of the week/ month. Protocols need to include everybody who goes to court-houses, ie. litigants, witnesses, public etc. Regulations may include wearing face-masks. Issue may arise at courts where a metal detector/ pat-down security check are being conducted.
There may be different challenges for different courts, including depending on the size of courts and whether they are in urban or rural areas (e.g. larger courts may be able to function as they have bigger rooms enabling social distancing, but smaller courts may need to remain shut).
2) New types of cases:
New types of cases are likely to reach courts. These include sanctions against individuals for breaches of quarantines; remedies against other emergency measures and constitutional and human rights scrutiny of emergency legislation. Judges may not be automatically familiar with relevant international law, and training initiatives should therefore be considered on this aspect - including online-trainings - as soon as possible.
Caution should be exercised regarding assignment of such cases to specialized judges as it bears a high risk of politicization or allocation to "convenient" judges.
For the European region, the European Judicial Training Network (EJTN) could play a role in training initiatives.
3) Issues relating to the expiry of emergency measures:
Issues may arise when the suspension of deadlines suddenly expires on day 1 after the expiry of emergency legislation. As a consequence, deadlines to submit appeals and other remedies and motions may be tight in situations of huge case backlogs for lawyers; and deadlines for decisions may be tight for judges. Information about the end of emergency measures and the impact on deadlines and statutes of limitations may not be clear or easily accessible/ comprehensible.
4) Judicial administration/ Court management:
Issues related to dealing with the aftermath of the crises should be consulted with judicial self-governing bodies and judges associations.
Caseload will be considerable increase due to suspension of procedures during the crises, but also the expected increase of labor cases, insolvencies (and possibly family disputes and rental issues, see below). - How can capacity of courts be strengthened in order to deal with this caseload? - Will a re-allocation of cases be required and how can politicization of this case allocation be prevented? - Are there ways to increase the involvement of mediation and thereby reduce cases that go to court? - Can the criminal justice system be decongested to ease the workload, which would be long overdue anyway in many jurisdictions?
There will be issues regarding prioritization of cases from the backlog, necessary adaptations of case allocation etc. Prioritization of cases following the end of emergency measures should not over-emphasize economic interest over the protection of rights of individuals, and should follow fair and objective criteria.
Backlog in selection and promotion of judges should be resolved, and positions possibly be filled based on criteria of urgency - if this is possible without politicizing this issue. International standards on selection need to be retained, and no 'interim' judges or 'special courts' should be established as this would undermine judicial independence and create a risk of politicization.
Phasing out of online hearings and other IT-tools and continued use of such technology to reduce the backlog should be discussed, keeping in mind the pros and cons of these tools, in particular shortcomings of fair trial rights.
Furthermore, lessons learned from the crises should be documented, and courts be made fit for any future court closures.
There may be different challenges for different types of courts (district courts, appeal courts, Constitutional Courts, Supreme Courts). Linked to this the question arises of whether individuals are able to get to courts that are further away and what happens to staff and judiciary who support the smaller courts, etc.
The question arises of available resources to courts to put in place any technical capacity, also training available to judiciary and staff in how to use them, where are these resources going to come from and how quickly will these be delivered.
5) Overarching considerations:
- There is a risk that states overlook the significance of the role of courts in the aftermath of the pandemic, relating to effective remedies against emergency measures, grievances caused by the pandemic - and also from the perspective of the economy.
- Already under-funded judicial systems struggle with resolving the challenges due to the crises and there is a risk that court budgets may be further reduced, when resources and funding has already been stretched in many pSs before the crises.
- Some measures intended short-term may become permanent (e.g. online hearings, etc.). At the same time, there may be positive opportunities for the judiciary to make some much needed changes, and to call for resources to do so.
- States should develop an action plan for courts in the aftermath of the pandemic. A range of conflicts and grievances will be addressed to the courts, and return of society to a relatively "normal" life and re-booting of the economy will depend on swift resolution by courts.
- There will be an effect also on supra-national courts. Human rights concerns and alleged breaches of EU-law are likely going to increase the caseload of the ECtHR and the ECJ. It will be in the interest of these courts that as many cases as possible are resolved at the national level. Consistency of judicial outcomes within each pS, but moreover across pSs would be desirable in the interest of fairness.
- A positive role of courts in resolving these conflicts and grievances could help rebuild/ increase public trust in the judiciary.
- There is likely knock-on implications for courts from other sectors (e.g. legal firms are not operating to their full capacity and so unable to offer the level of representation needed, or impacted by when fees are paid; a potential for greater numbers of self-representing defendants; inability of courts to offer the range of community orders usually available because probation are not operating fully, etc.; push away from custody as far as possible, etc.)
- Attention should revert back to rule of law backsliding in some pSs. Grave concerns existed with regard to rule of law and judicial independence in a range of pSs, some of which have aggravated during the pandemic, but the pandemic has diverted the attention away from these challenges.