IN THE PANDEMIC WE TRUST: EMERGENCY-DRIVEN JUDICIAL REFORMS AROUND THE EU COURTS

The tracing of Covid-19-driven judicial reforms in Court systems around the EU highlights important disparities in the levels of digitalization among Member States. Reflections upon this emergency period help us draw important lessons for the modernization of justice both in the short-term and the long term. 

Access to justice interrupted 

As the Covid-19 pandemic spread around the world, economies but also public administrations, including the judiciary, shut down in early 2020. How did the closure of physical courtrooms impact access to justice in the EU during the first months of the pandemic? ¹For our purposes, this is treated as the same period for all EU Member States, approximately situated between March and the summer of 2020. Member States declared slightly different emergency periods (e.g., Bulgaria: March 13 – May 14, 2020; Czech Republic: April 14 – May 17, 2020; Hungary: March 11, 2020 – indefinite; Romania: March 22 – May 15, 2020). Also, some Member States did not declare official periods of emergency but still took extraordinary measures (e.g., Belgium: April 09 – June 03, 2020; Italy: January 31 – June 30, 2020). Were the courts ready to deliver justice online? 

Access to justice is a fundamental human right enshrined in Article 47 of the EU Charter of Fundamental Rights. Yet, an analysis of institutional measures taken during the early pandemic days as well as on-the-ground reality in the judicial systems of the 27 Member States indicates a period of serious access barriers. This is in spite of the Member States’ effort to quickly transition to remote work embracing the use of electronic justice (e-justice) tools. The transition presented numerous technical, organizational but also legislative and normative challenges.

When comparing the Member States, we can clearly see the different levels of readiness for this period that demanded remote work.²This blog-post stems from our research project investigating the nature and scope of ICT reforms around courts in the EU. The project started in 2020 and includes an account of how national courts within the EU adapted to the COVID-19 crisis. We have been gathering sources and documenting our process and results on a dedicated website (http://justicedigitized.com) where we are mapping developments in each Member State. The website forms an integral part of this research and helps us visualize but also compare our data with those recorded in official EU and national sources. The differences are associated with the various levels of digital integration in the various justice systems (Kramer, Hoevenaars & Themeli, 2022). In fact, Member States that were already at an advanced stage of digitalization, in other words, those that had been accustomed to using e-justice tools and processes for a significant period before the pandemic, experienced a smooth transition to meeting the enhanced e-justice needs during and since the initial emergency period of the pandemic. Other Member States struggled and were at the same time pushed to quickly introduce electronic tools and processes, first, to meet the de facto needs created by the pandemic and, subsequently, to reach the ambitious e-justice goals of the EU.   

Did all Member States guarantee continuous access to justice throughout the most difficult first period of the pandemic crisis? A fair answer to this question is no. Furthermore, the data we have from the Member States demonstrates that technological capacity is, in fact, more difficult to achieve than legal or political capacity when it comes to rapid/emergency needs for remote justice. In other words, legal reforms to promote e-justice reforms are relatively easier to achieve so long as there is need/momentum and political will, which clearly seems to have been the case around the Union since the beginning of the pandemic. Technological reforms are slower and demand more catching up from Member States that started later than others.  

To assess Member States’ readiness and the performance of the various justice systems around Europe during these first months of the pandemic, one must first, look at whether courts had, and whether they used, communication technologies for internal and external communications. Were courts equipped with videoconferencing systems to conduct secure online hearings? Did their laws permit the use of such systems? Second, were individuals who sought justice allowed to file claims online? Were there e-filing and case management systems in place? 

Using these two indicators — the availability and use of (a) communication technologies and (b) e-filing and case management systems — we were able to create categories showing that very few Member States, namely Austria, Estonia, Hungary, Finland, Latvia, and Slovakia experienced smooth transitions towards remote justice during the first months of the pandemic.³Ibid. See our data consolidated at http://justicedigitized.com/covid-19-case-studies/ In those Member States, the smooth transitions have been enabled by previous investments into both e-justice infrastructure and legislation permitting its use. Conversely, we observe Member States with low — at least at the time — levels of judicial digital infrastructure facing significant difficulties during the first months of the pandemic. Among them are Cyprus, Greece, Luxemburg, Malta, and Poland all Member States whose judiciaries experienced difficult transitions into remote work. The majority of the EU Member States fall somewhere in between these two categories (smooth and difficult transitions). Some, like Denmark, Germany, Lithuania, Spain, Slovenia, and others, were already making progress in updating their justice systems and progressed even further quickly. These were Member States that did not necessarily have smooth transitions but could and actually did mobilize very quickly. Most Member States accelerated digitalization efforts in their justice sector during the early stages of the pandemic, despite relatively low prior levels of digital infrastructure. Belgium, Bulgaria, Croatia, the Czech Republic, France, and others faced more difficulties during the transition but appeared to have been catching up.  

The access barriers that citizens faced due to lacking or poor judicial digital infrastructure are concerning. Particularly during a state of emergency, the role of the judiciary and of citizens’ access to justice becomes even more essential. What courts learned from this pandemic period is that e-justice tools can indeed help keep courts open, at least virtually. 

Sufficient time has passed since the initial court shutdowns to now raise more questions about the advantages and disadvantages of the Court’s accelerated digitalization efforts à propos the crisis. What lessons should we learn from the Covid-19 experience that are potentially useful for a next crisis and, more importantly, for ongoing and future judicial reforms?  

Access to justice non-stop? 

A crisis – an emergency situation – is understandably interrupting the government among many other functions. This includes derogations from access to justice, which is not an absolute right. Indeed some Member States, together with their declaration of a state of emergency, declared a derogation under Article 15 of the European Convention of Human Rights, which states: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Also, as the Court has explained, the natural and customary meaning of “public emergency threatening the life of the nation” refers to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.” (Lawless v. Ireland)

It can be argued that, at the peak of the Covid-19 crisis, the limitations to access to justice such as backlogs, increase in proceedings’ duration, and online rather than physical presence at trials were justified due to the public health emergency. The decision to derogate from ECHR obligations, including from Article 6, falls under a wide margin of discretion for national authorities who have the responsibility to determine when life is threatened by a public emergency. 

Yet, access to justice is so essential to the rule of law that emergency derogations should be scrutinized further. It is particularly important to guard access to justice in times of crisis and effectively, not just nominally, guarantee the protection of fundamental rights without any discounts or derogations. Access to justice during crises is also important for the accountability of the executive. The typical risk is that while handling a public emergency the executive will find the opportunity to enact permanent changes in the system “under the color of emergency.”(Panov, S. 2020) 

This leads us to the following questions: Have we been using the Covid-19 crisis to normalize e-justice too quickly? Most importantly, is a crisis rhetoric the appropriate framework to accelerate long-term e-justice policies? It is interesting that this is not the first time the Union has associated e-justice goals with crisis incentives. The first EU Justice Scoreboard from 2013 begins by highlighting the need to modernize justice amidst the then-climaxing financial crisis. 

The biggest shortcoming of associating a modernization policy with a crisis is the tendency to then overestimate the benefits of modernization and overlook its disadvantages. This is, we think, currently the problem with e-justice policies as promoted by the EU. Actually, while the digitalization of justice and the increased use of e-justice tools may have a series of positive effects on the administration of justice, such as the enabling of remote justice, the speeding up of long and bureaucratic processes, or improving accessibility, negative effects, although not always discussed much, are not inconceivable. It is possible, for instance, that digital tools and procedures are inaccessible to technologically challenged groups of the population – typically the most vulnerable groups, for example, the elderly – or that the use of technologies that facilitate remote processes compromise the “human” factor or the necessary formality in parts of the judicial process. The importance of empathy, emotion development, and face-to-face communication, as well as flexibility more generally, can often be neglected by ambitious plans for rapid technological reforms. 

The EU’s e-justice rhetoric, currently still crisis-driven, focuses mostly on the benefits that quick reforms can have. The Union’s focus seems clear: reach a common level of digital integration in the justice systems of all Member States, and reach that quickly; increase online access to legal information and legal services; improve e-communications within and between courts; and increase interoperability. In other words, the measures that the Union has been promoting focus a lot more on the technological and legal infrastructure, understandably, but less on the social and economic realities of each Member State. This is one-sided because, as the on-the-ground realities in the Member States during the first months of the pandemic also showed, there are more diverse factors that affect each justice system’s performance. To give the most obvious example, e-justice reforms cannot come without equal attention to the needs of court staff and to courts’ budgets. Also needed is significant attention to citizens’ needs, the levels of digital literacy in each Member State, as well as access to basic technologies and broadband internet. 

For a more realistic and smooth transition and to achieve the EU’s ambitious goals without stressing the national judicial systems in ways in which, even in the short-term, meaningful access to justice for citizens might be compromised, we think that e-justice policies should disassociate as much as possible from the current crisis rhetoric and expand their focus on the social realities of citizens in the various and diverse communities within the Member States. This disassociation and focus on the socio-legal realities, such as the digital divide, and the needs of EU citizens on the ground will also be vital in the long run as we focus on more complex dilemmas related to the use of more advanced technologies in the justice system, such as the use of AI in predictive justice and other related developments.