COVID-19 Symposium: The Courts and Coronavirus (Part I)

[Matt Pollard is a Senior Legal Adviser for the International Commission of Jurists (ICJ) in Geneva, and Director of the ICJ Centre for the Independence of Judges and Lawyers; Mathilde Laronche is an Associate Legal Adviser for the ICJ, with a specialization in human rights, humanitarian law and international criminal law and Viviana Grande is an intern with the ICJ, a law graduate from Rome, and an LLM Candidate at the Geneva Academy of International Humanitarian Law and Human Rights.]

Other colleagues are setting out the general framework for derogations under the International Covenant on Civil and Political Rights (ICCPR) during a public health emergency such as the COVID-19 pandemic. States have obligations to take effective protection measures arising from the right to life and right to health; at the same time, as in any other emergency, the State’s other human rights and rule of law obligations remain applicable. Whether based on the ordinary scope for limitations of rights, or on derogations, protection measures must satisfy requirements of legality, non-discrimination, necessity, and proportionality (and time-limitedness for derogations). The criterion of proportionality may be particularly difficult to apply, at least in the short-term, to the COVID-19 crisis given the various uncertainties on transmission, degree of spread, and effectiveness of measures, and what is already known about the potential severity of its consequences.

Our contribution (in two parts) will consider the specific context of restrictions on access to or operation of courts. Around the world, in response to COVID-19, courts are adopting different modalities for the hearing of matters and limiting the range of matters than can be brought before them to only the most “urgent”, while postponing all others.

This first post will set out the most relevant provisions on the role of courts in international human rights law, including in situations of emergency. A subsequent post will look at various aspects in more detail.

Judicial institutions primarily feature in international human rights law in three roles: the right to fair trial by an independent and impartial court (e.g. article 14 ICCPR); the right to judicial control of deprivation of liberty (e.g. article 9(3) and (4)); and the right to an effective remedy (e.g. article 2(3)). These three roles are reflected also in regional and subject-matter specific human rights treaties.

The judiciary also plays an essential role in securing the rule of law by ensuring that the actions of the other branches of government respect the law. Indeed, this role becomes even more important in times of emergency or other crisis, and yet it is precisely in those situations that it is most often limited or threatened. Whenever the executive claims extraordinary powers there is a risk of deliberate abuse for improper motives; limiting the ability of courts to review and respond to executive action greatly increases this risk. Detecting and addressing such abuses should be a priority for human rights and rule of law mechanisms. Our analysis here, however, focuses on key human rights and rule of law considerations that should inform the adoption and application of good faith efforts.

Independence of the judiciary is essential for both human rights and the rule of law. Restrictions adopted by or at the request of the judiciary are generally more compatible with judicial independence than measures imposed on the judiciary by another branch of government.

It is not only the parties to a case and other affected individuals whose human rights must be considered in the context of the COVID–19 pandemic: individual actors within the court system are also rights-holders, and the right to life and right to health of individual judges, lawyers, prosecutors and court staff, for instance, must also be respected, protected and fulfilled. The fact COVID-19 mortality appears to increase with age may be a particular consideration if the judiciary in a country has a higher proportion of older persons than for other professions.

Some human rights treaty provisions expressly permit restrictions to the exercise of a right, even without a derogation, on grounds relevant for the current Coronavirus pandemic (see e.g. allowance for ‘public health’ restrictions in ICCPR articles 12 (freedom of movement), 18 (freedom to manifest one’s religion or beliefs), 19 (freedom of expression), 21 (right of peaceful assembly), 22 (freedom of association), or concepts such as ‘arbitrary’ in for instance article 9(1) (prohibition of arbitrary arrest or detention) and 17(1) (right not to be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence)). Other rights can be limited only in situations of emergency that ‘threaten the life of the nation’ (for instance under article 4 ICCPR).

Articles 2, 9(3) and (4), and 14 ICCPR do not explicitly allow for ‘public health’ restrictions, but this does not necessarily mean there is no flexibility in their application. As regards article 14, the Human Rights Committee has explained that ‘[a]ll trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly’ and courts must ‘provide for adequate facilities for the attendance of interested members of the public, within reasonable limits’. However, ‘[t]he requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities’ (HRC GC 32, para 28). Furthermore:

Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons… (HRC GC32, para 29).

Elsewhere in the ICCPR, ‘public order’ and ‘public health’ are listed as distinct grounds; it appears then that generally limiting public access to court proceedings on health grounds may require a derogation in relation to publicity of hearings under article 14(1), at least in the absence of a substitute such as video broadcasting of proceedings.

Similarly, article 14 does not explicitly contemplate a denial or significant postponement of the general access of civil litigants, criminal accused, or their lawyers, to apply to or appear before the court and receive timely hearings, on any ground; so such a general denial or postponement may again require a derogation. The same may apply to the access of those claiming to be victims of human rights violations to any judicial remedies under article 2, and the access of persons deprived of liberty under articles 9(3) and 9(4). Furthermore, article 9(3) includes the right ‘to trial within a reasonable time or to release’ for persons deprived of liberty; raising the question whether anticipated delays caused by general and extended COVID-19 suspensions extend the period for ‘trial within a reasonable time’, or (at least absent derogation) would require the release of large numbers of persons from pre-trial detention (which may in any event be needed as a public health measure).

Some rights or aspects of rights can never be limited in any circumstances, whether by explicit provision in the treaty or by inference, including several with particular relevance for the courts:

• While ‘adjustments to the practical functioning of its procedures governing judicial or other remedies’ for rights violations under article 2(3) may be permitted by derogation, ‘a remedy that is effective’ must always be available. (HRC GC 29, para 14 and see Inter-American Court of Human Rights).
• ‘It is inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2’, such as the prohibition of torture and right to life, ‘that they must be secured by procedural guarantees, including, often, judicial guarantees’. (HRC GC 29, para 15).
• ‘Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. […] [T]he principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency’ (HRC GC 29, para 16). ‘[…]States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. […] Deviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times’ (HRC GC 32, para 6).
• ‘In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant’ (HRC GC 29, para 16; GC 35 paras 64-67, and see Inter-American Court of Human Rights).

Having set out this framework, in our next post, we will analyse specific kinds of measures taken to restrict access to or operations of courts in the context of the COVID-19 pandemic.