The pandemic has gravely affected the operation of courts, as they had to work literally behind closed doors and hastily switch to online channels. Russia has already held its maiden session via a messenger, but the restructuring has been painful for the whole judicial system. That’s why it has become the main topic for a LF 9 ½ session, dedicated to Remedies During Pandemic.
The moderator, Mikhail Shvarts, Acting Head of the Department of Civil Procedure, Professor, St. Petersburg State University said: «May and should the justice be administered if it is detrimental to the health of all parties to a case, judges and the court staff? Does the party to a case have the right to make a motion to delay the hearings, referring solely to their fear of leaving home, or failure to find a lawyer for the same reason?»
Victor Momotov, Judge of the Supreme Court of the Russian Federation, reported on the measures that the courts in Russia had to take. They ceased receiving citizens in persona, and the documents were asked to be submitted through web offices. The courts are now considering only urgent documents and cases, including the ones of protecting the people’s constitutional rights to freedom and security of person, health and property protection. Also the courts may use fast track procedures, if all the parties to a case filed a move to have their case heard in absentia and their presence is not mandatory.
«We have to proceed from the materiality of outcome of a case. <…> Such cases include the ones of indemnifying damage to health, as well as the cases, when the parties to, due to their health conditions, may not live to see the end of a litigation. These may be family disputes about children, termination of parental rights, removal of the child from a family, civil state cases, deprivation or restoration of legal capacity, disputes arising from labor relations», Victor Momotov said.
Anna Joubin-Bret, Secretary, United Nations Commission on International Trade Law, elaborated on the situation at hand. In particular, she said: «This crisis acts as a stress test for many our instruments <…>, especially as concerns the use of virtual tools. It shows that once it works during the crisis, it will work once it is over. Probably we will have to change our modus operandi once we are done with the crisis. Arbitration already has all the necessary powers to make a digital revolution within its system.»
All the courts in the world are moving to a new system and the European Court of Human Rights is no exception, Dmitry Dedov, Judge of the European Court of Human Rights said. All its 47 judges got a remote access to the records database. «I would like to note that our procedures are easily adaptable. The court’s staff also works together to bring the procedures in compliance with the situation at hand. <…> We communicated via the Internet. Our leaders suggested holding the sessions in writing and we would either agree or make our reservations. It was done very quickly, within on day», he said.
According to him, hearings in writing have a number of advantages over meeting in persona. The parties to a case may read the documents more thoroughly, whereas the judges may take a more balanced decision. Besides, Mr.Dedov said, the conventional judicial system had a number of outdated practices, such as locking down the jury.
«I think that a lot depends on trust to each other, trust to the judicial system and the judges. Despite the fact that the hearings are in writing and via video conferencing, the judges will try to respect our constitutional rights and give us the opportunity to hear the arguments of the opposite party and we can expect that the court will provide thorough and justified comments on our arguments. This is what makes a just and fair trial. If we follow this guideline, everything will be good», he said.
The experts also said that the pandemic would affect how the courts work after the crisis was over. «This crisis shows that the new system works. There are some areas where we can rely on technologies. <…> For instance, I can imagine an international arbitration with the two parties located in different jurisdictions. This implies heavy costs due to transfers and documents delivery. The arbitration courts have recently decided to fully go online. Before that, being an arbitrator, you had to receive boxfuls of documents. Should it be a hearing in several languages, there would be dozens of boxes in English, Spanish, Chinese, Russian. Now, we can streamline the process», – Anna Joubin-Bret, Secretary of the United Nations Commission on International Trade Law said.
Still, the speakers agreed that the courts could not go online completely. Victor Momotov said: «When the judge takes a decision, he or she is guided by their heart and points of law. In that respect, a personal contact and communication are very significant. We will never rule it out. No robot, no video conferencing will ever replace communication in the judicial system.»
St. Petersburg International Legal Forum 9 ½ : Rule of Corona is held on April 10 through April 12 via video conferencing. It brings together Russian and international authorities, lawyers, academics, politicians and journalists. The Forum focuses on legal aspects of public and business life amid COVID 19 pandemic.