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

[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.]

In our first post, we highlighted key provisions of international human rights law relevant to restrictions on access to or operation of courts in response to emergencies such as the COVID-19 pandemic. In this post we look in more detail at a number of more specific issues including:

• Suspension of ‘non-urgent’ cases
• Changes in the modality of hearings
• Dealing with the consequences of postponement of cases
• Risk-tolerance and the fundamental role of judges

Our analysis is informed by trends reflected in the measures adopted in a range of countries. In addition to a useful global survey published by the International Association of Judges, and ongoing reporting by Fair Trials, we have also looked at measures in Australia, Belgium, Canada, China, Colombia, France, Guatemala, Honduras, India, Ireland, Italy, Mexico, New Zealand, Norway, the Russian Federation, Singapore, South Africa, South Korea, Spain, Sri Lanka, Switzerland, the United Kingdom, the United States of America, and Zimbabwe, among others. However, we have not for this article specifically analysed whether the particular measures in any of these countries do or do not meet the applicable criteria.

In many cases, judiciaries are generally suspending all matters except those deemed ‘urgent’. The actual distinction between ‘urgent’ and ‘non-urgent’ measures varies between jurisdictions, but generally appears to be based on inferences about the categories of cases in which delay is most likely to cause irreparable harm.

As a general matter, it is worth also recalling in this connection the potential for interim injunctions or other forms of immediate relief, based on relatively brief and summary procedures, to preserve the situation and particularly to prevent irreparable harm, until a complex matter can be given a full hearing.

The following are especially worth considering in determining which matters should qualify as ‘urgent’:

Retaining scope for judicial review by independent courts is essential to upholding human rights and the rule of law during states of emergency (see the International Commission of Jurists’ (ICJ) 2011 Geneva Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis, Principles 1 and 4 and pp. 1-15, 57-75 of the Commentary). In a 2008 report, the UN Special Rapporteur on the Independence of Judges and Lawyers similarly emphasised that national courts must remain competent and capable to evaluate and if necessary nullify any unlawful imposition or unjustified extension of emergency measures (see report paras 16-19, 66). While in performing such a role, the courts may accord a certain degree of deference or margin of appreciation on questions of a scientific or political matter, no emergency measure should be beyond some degree of judicial review.

A discussion paper published by the World Health Organization in 2008 on pandemic influenza planning, for instance, concluded that ‘countries should have procedural mechanisms for groups to challenge the unjustified use of the quarantine or isolation power’, in order to comply fully with the Siracusa Principles and the ICCPR.  (In so far as particular quarantine or isolation orders may not merely constitute restrictions on freedom of movement under art 12 ICCPR, but actually constitute deprivation of liberty under art 9 ICCPR, as noted in our previous post and below the Human Rights Committee has specifically indicated that the right to challenge the deprivation of liberty before a court cannot be restricted by derogation).

As was noted in our previous post, the right to an effective remedy is also treated by the Human Rights Committee as non-derogable, and where a judicial order would be necessary for the remedy to be effective, this implies courts must always be available for such cases (see also ICJ Geneva Declaration principle 11 and Commentary pp. 181-196).

Judiciaries should give particular consideration to the situation of women and children, older persons, persons with disabilities, and others, recognising the urgency of applications to the court for protective measures for persons from such groups who do or may face increased risks of violence, abuse or neglect, relative to others, whether as a result of general confinement measures, or who would otherwise be at greater risk if access to other protective orders were suspended or limited. 

Judicial guarantees have been particularly recognised (para 13) as necessary to protect non-derogable rights for persons deprived of their liberty, whether in police detention facilities, penitentiary institutions, immigration detention centres, psychiatric hospitals and social care homes or in compulsory quarantine for reasons of public health protection. Procedural guarantees such as the right to have access to a court to challenge any deprivation of liberty and the right of persons deprived of liberty on criminal law grounds to be promptly brought before a judge, may consequently be seen as non-derogable (para 67), and given the particular vulnerability of persons deprived of liberty, must be seen as urgent. Primarily to prevent the spread of COVID-19 in closed institutions, some States are releasing persons from pre-trial detention or prison to house arrest or other forms of monitoring or control, and/or ceasing to arrest or detain people for minor offences. Such measures can also reduce the burden on the judiciary to conduct judicial supervision of deprivations of liberty.

In many proceedings, particularly at first instance, the litigants (or the prosecutors and accused), as well as their lawyers, and persons arrested or detained on criminal grounds, normally appear in person before the Court. Often documents must be filed in person at a court registry. In response to the COVID-19 outbreak, many judiciaries are increasing reliance instead on alternatives such as telephone- and video-conferencing, and electronic filing.

If they are based in law, time-limited and demonstrably necessary and proportionate in the local circumstances of the present outbreak, and do not for instance prevent confidential communication of a person with their lawyer, in principle such adaptations of modalities can be a proportionate response, at least in civil matters and criminal appeals (see e.g. Vladimir Vasilyev v Russia, para 84; Marcello Viola v Italy, paras 63-77; Golubev v Russia; Gankin v Russia). The limitations of such technologies, which are not always self-evident, must be taken into account and the suitability of a matter for such modalities may need to be determined on a case-by-case basis. There will be some matters in which face-to-face in-person hearings will be indispensable (see e.g. as regards criminal matters, ICCPR article 14(3)(d) right ‘to be tried in his presence’, and article 9(3) right to ‘be brought promptly before a judge’ – although some States had already started to whittle away at these even before the current crisis). Reserve capacity for such hearings must be maintained if they are not capable of being postponed.

1. Dealing with the consequences of postponement

In the immediate term, States and judiciaries should be considering the impact of limitation periods and filing deadlines in the postponement of civil and criminal proceedings and, where the current circumstances would not already automatically extend such periods, consider amending the relevant laws or enacting an exception (see e.g. measures announced by the European Court of Human Rights and Inter-American Court of Human Rights).

Furthermore, particularly if postponements become very prolonged, judges will need to consider the implications for the right to trial ‘without undue delay’ (ICCPR 14(3)(c)) and the right of pre-trial detainees to release if not tried ‘within a reasonable time’ (ICCPR 9(3)).

Once the current crisis subsides sufficiently for the justice system to resume its activities at an increased or full capacity, the courts will face a considerable, possibly overwhelming, backlog of postponed proceedings, hearings and trials, as well as possibly greater-than-normal numbers of bankruptcy, insurance, labour law, and other such matters. It may not be possible for judiciaries to secure the resources to scale up capacity beyond pre-crisis levels, and so States may need to consider decriminalisation or amnesty for certain offences, presumably focussing on minor non-violent matters, increased use of mandatory ADR for a larger portion of civil litigation, and perhaps more fundamental reforms to areas of substantive law. Indeed, decriminalisation of some offences may simultaneously advance human rights: see for example the 2017 Principles on the Decriminalisation of Petty Offences in Africa and the ICJ’s ongoing decriminalization project.

   2. Risk-tolerance and the fundamental role of judges

There is no doubt that individual judges are entitled to measures to protect their right to life and right to health, and indeed the ability of the judiciary to continue to function depends on their well-being. At the same time, the question arises in the present circumstances whether judges might justifiably be asked to accept a higher degree of risk than that expected of other individuals that do not hold judicial office, given the essential role of the judiciary in securing human rights protection and the rule of law.

Courts have themselves taken into account the risks inherent in certain public functions when assessing the adequacy of protective measures for, for instance, members of the armed forces, while nevertheless being ready to find States responsible for rights violations in appropriate circumstances. An acceptance of heightened risk may also follow from public service as a firefighter, police officer, medical practitioner, and so on.

In practice, most judiciaries and States do seem to recognise the special role and potentially increased risk-tolerance of judges, by ensuring for the moment access for urgent matters even while much of the rest of the population may be at home, and individual judges continue to demonstrate courage in this regard. But as the pandemic spreads and deepens, the question of how much risk judges must assume by nature of their office, may become more consequential in assessing the necessity and proportionality of further restrictions on access to and operation of the courts.