Material realizat de Raluca Petrescu, Partner & Catinca Turenici, Senior Associate
The unprecedented measures adopted by countries worldwide for tackling the COVID-19 outbreak, including social distancing and movement restrictions, have prompted changes to the national judicial systems as well.
From the United States to the Middle East, from Europe to Australia, courts have closed their doors and are hearing only the most urgent cases. In addition, court session hearings are now being conducted remotely, either by tele- or videoconference.
In the United Kingdom, civil hearings are being conducted remotely wherever possible, with physical hearings to take place only where the first option is not possible. Similarly, courts across the United States have moved to remote video and audio conferencing in order to safeguard, as much as possible, the parties’ access to justice. In Canada, the Court of Appeal is hearing cases before a single judge by telephone conference, while appeals and applications before three judge panels are heard electronically by videoconference or by telephone.[1]
In European civil law countries, such as the Netherlands, courts have been closed with only urgent cases to continue in the next period. The hearings are to be held by video conference, whenever possible. Germany has adopted a more flexible approach, with each judge deciding whether or not a certain hearing will be held and by what means.[2]
More advanced judicial systems like the Singaporean one appear to be one step ahead, with such digital platforms and mechanisms in place before, and independent of, the COVID-19 outbreak. In Singapore, lawyers are used to making applications, and parties or witnesses regularly appear in court by way of video link.[3]
Romania has made no exception; during the emergency state instituted on 16 March 2020 and which, as per the Presidential Decree of 14 April 2020, has been extended for 30 additional days,[4] only extremely urgent cases are heard by the courts. In these cases, where possible, courts must take all necessary measures for the hearings to be conducted by videoconference and shall communicate procedural acts by fax, email or similar means.
In the particular case of criminal files, the hearing of persons deprived of liberty shall be made by videoconference.
Parties are also advised to submit any procedural acts addressed to courts by electronic media.
Some major courts in Romania were quick to adopt the recommendations on remote hearings, with the High Court of Cassation and Justice holding its first hearing by videoconference on 30 March 2020.[5] Other courts followed, with the Bucharest District Court adopting a procedure for hearings to be held by videoconference and sending summons to the parties requesting their Skype ID.[6] Similarly, the Iași Court of Appeal has issued since March 2020 recommendations for judges to use videoconference systems as much as possible, for those cases to be heard during the emergency state period.[7]
What had been proposed by legal professionals for years and met with reluctance by national courts and judges, is being implemented now overnight due to the COVID-19 outbreak. This just goes to show that it was rather old mentalities and comfort zones that were standing in the way of digitization, and not the lack of technical instruments.
The immediate advantage brought by these measures in the current context is obvious and commendable; however, the true benefit of the online and digital mechanisms will be for national courts to continue using them even after the COVID-19 outbreak has disappeared and/or the restrictions lifted.
Remote hearings translate into less travel time to and from court, while electronic submission of procedural acts leads to less resources spent on hardcopies, all towards more time- and cost-efficient legal proceedings and enabling access to justice. Moving online will inevitably break the traditional patterns upon which most legal procedural principles were standing, such as the publicity of hearings. Public authorities and courts will have to figure out a way of digitizing the judicial sector while at the same time preserving the parties’ procedural guarantees.[8]
[1] For details, visit https://www.nortonrosefulbright.com/en-br/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings
[2] https://www.bierensgroup.com/en-gb/article/judicial-debt-collection-and-the-coronavirus-the-status-of-european-courts/
https://www.osborneclarke.com/insights/effects-coronavirus-civil-proceedings-germany/
[3] https://www.nortonrosefulbright.com/en-br/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings
[4] Presidential Decree of 14 April 2020 by which the emergency state was extended by 30 days: https://www.presidency.ro/ro/media/decret-semnat-de-presedintele-romaniei-domnul-klaus-iohannis-privind-prelungirea-starii-de-urgenta-pe-teritoriul-romaniei
[5] High Court of Cassation and Justice press release informing on the hearings conducted by videoconference: https://www.scj.ro/CMS/0/PublicMedia/GetIncludedFile?id=21566
[6] Bucharest District Court Management Board Decision whereby the procedure for hearings by videoconference was adopted: http://www.tmb.ro/wp-content/uploads/2020/04/extras-procedura-videoconferinta.pdf
Notably, the website of the Bucharest District Court now has a special section dedicated to hearings by videoconference, where the form entitled “Agreement to participate at the hearing by videoconference” can be downloaded and filled in by the parties. (http://www.tmb.ro/)
[7] Work Order no. 3/13.03.2020 issued by the President of the Iași Court of Appeal: http://portal.just.ro/45/Documents/Alte%20anunturi/CA%20Iasi%20Ordin%20de%20serviciu%203-2020%20-reguli%20infectie%20coronavirus.pdf
[8] In the UK, for example, journalists have been allowed to join online hearings.
https://www.osborneclarke.com/insights/effects-coronavirus-civil-proceedings-germany/
[3] https://www.nortonrosefulbright.com/en-br/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings
[4] Presidential Decree of 14 April 2020 by which the emergency state was extended by 30 days: https://www.presidency.ro/ro/media/decret-semnat-de-presedintele-romaniei-domnul-klaus-iohannis-privind-prelungirea-starii-de-urgenta-pe-teritoriul-romaniei
[5] High Court of Cassation and Justice press release informing on the hearings conducted by videoconference: https://www.scj.ro/CMS/0/PublicMedia/GetIncludedFile?id=21566
[6] Bucharest District Court Management Board Decision whereby the procedure for hearings by videoconference was adopted: http://www.tmb.ro/wp-content/uploads/2020/04/extras-procedura-videoconferinta.pdf
Notably, the website of the Bucharest District Court now has a special section dedicated to hearings by videoconference, where the form entitled “Agreement to participate at the hearing by videoconference” can be downloaded and filled in by the parties. (http://www.tmb.ro/)
[7] Work Order no. 3/13.03.2020 issued by the President of the Iași Court of Appeal: http://portal.just.ro/45/Documents/Alte%20anunturi/CA%20Iasi%20Ordin%20de%20serviciu%203-2020%20-reguli%20infectie%20coronavirus.pdf
[8] In the UK, for example, journalists have been allowed to join online hearings.
