Freedom started releasing a periodic bulletin on the situation of detained
people, which also cover the situation of irregular immigrants in administrative
detention, nursing homes and judicial psychiatric institutions.
Other measures to protect people in prisons from an outbreak include the
establishment of a risk assessment procedure for new prisoners entering
prison in Austria129 and quarantine measures for infected prisoners. In France,
the Minister of Justice announced the distribution of 100,000 face masks in
prisons.130 In Italy, manufacturing facilities within prisons – which employ
prisoners – will produce face-masks.131 In Belgium, a public service trade union
raised concerns about the lack of disinfectant products and the ability to
respect social distancing rules in prisons, as well as about the risk of rioting.132
DISRUPTIONS TO THE
JUDICIAL SYSTEM
concerning minors at risk or urgent
guardianship and domestic violence
proceedings – be carried out.
The Coronavirus pandemic has also
seen Member States struggle to
balance access to justice rights with
ensuring the health and security
of all persons involved in judicial
proceedings.
The consequences of the
COVID-19 outbreak demonstrate
the limitations of the judicial
system’s ability to work remotely
using electronic devices for
communication, to access files
held in databases and to conduct
proceedings via video conference.
This is particularly the case where
courts are not fully adapted to using
such technology.
In many Member States, courts are
still functioning, but with various
restrictions. Whenever possible,
judicial proceedings take place in
written form or via videoconference
rather than through hearings
(for example in Estonia), or only
urgent cases and cases not
involving witnesses are being
heard (for example in Ireland).
In Denmark, an assessment of
critical cases is done in close
cooperation between a number
of judges and the Danish Court
Administration. The Netherlands
closed down all courts, allowing
only urgent cases to continue.
For certain areas of law that are
crucial to guarantee the rights of
vulnerable groups, exceptions are
made to the general restrictions
in proceedings. The new laws
in Italy, Portugal and Slovenia274
stipulate that urgent acts in
which fundamental rights are
at stake - such as proceedings
28
Technology has proved to be
a good practice in ensuring
protection for vulnerable victims
or witnesses and allowing them
to participate in proceedings, and
in allowing defendants who might
otherwise not be able to attend
to participate. Video conferencing
could be used where deemed
appropriate following a case-bycase assessment. However, if
used “by default” there could be a
negative impact on the minimum
standards as developed under
Articles 47 or 48 of the Charter and
Article 6 of the ECHR, in particular in
relation to effective participation in
proceedings, including one’s right
to be present.
In addition, the suspension of all
non-urgent cases and investigations,
as is the case in Belgium for
example,275 will affect the overall
length of procedures. Investigations
will be further extended, negatively
impacting due process and defence
rights. Moreover, the suspension of
all non-urgent requests to access
files will affect equality of arms, as
the time and facilities to prepare
the file may not be adequate, for
instance where there is no secure
means for accessing it online.276
Mitigating measures will be needed
to address these new challenges.
The Council of Bars and Law
Societies of Europe (CCBE) compiled
an overview of COVID-19 related
measures and their effects on the
criminal judicial system in various EU
Member States (based on a survey
of its members). The overview
includes, among many other issues,
safety measures implemented
in courts (many Member States
report postponement of hearings
and some report closing courts)
and measures to ensure prisoners’
access to a lawyer (some Member
States still allow lawyers to
visit clients in prisons, following
precautionary measures, although
many encourage finding technical
solutions to avoid physical
contact).277 Meanwhile, the
organisation Fair Trials is compiling
information on how the COVID-19
outbreak is affecting criminal justice
systems around the world.278
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