Monitoring the Judiciary during the COVID-19 Pandemic: A Civil Society Perspective
Anticorruption recommendations from GRECO and UNCAC serve as “good practice” guidelines for the Europe & Eurasia region. How states achieve these commitments and recommendations in practice, however, can be challenging and may vary across country contexts. The ‘Effective Combat Against Corruption’ (ECAC) project, supported by the U.S. Department of State, Bureau of International Law Enforcement and Narcotics (INL), is assisting partners in Bosnia & Herzegovina, Bulgaria, Montenegro and Romania to take steps towards implementation of recommendations that are obtainable and of most importance in their respective countries.
The onset of the COVID-19 pandemic reduced transparency and oversight of government operations, even as spending on relief packages and economic stimulus programs soared. It also interrupted access to courts and impeded transparency in judicial proceedings, creating and exacerbating backlogs and generating opportunity for abuse or unethical behaviour. The COVID-19 pandemic has impacted the types and numbers of cases reaching the courts. While some types of offences have decreased during the pandemic (e.g., burglary and assault), there has been an increase in others (e.g., cybercrime, hate crimes, fraud and corruption). As states have shifted from immediate reaction to medium- and longer term response to the pandemic, corruption risks have evolved but have not abated.
Anticorruption stakeholders adapted to a new reality in which access to information rights are curtailed, executives continue to exercise outsized powers accorded by emergency declarations, oversight institutions grapple with clouded and minimized mandates and intense political pressures, and health and safety precautions continue to impact daily operations. These conditions greatly increase the risk for abuse of state resources (the use of state financial, physical, institutional or other resources for personal or political gain). Across the globe, courts have rapidly adapted their practices and procedures in response to the COVID-19 pandemic. As waves of infections have spread throughout the world, courts have fluctuated between resuming activities and easing restrictions, then scaling back services and reintroducing restrictions. Courts have modified their normal operations substantially, and continue to update and adjust them on an ongoing basis. Civil society organizations (CSOs) has faced challenges in the monitoring of the judiciary during the pandemic.
To foster understanding and address emerging challenges, approaches and recommendations, the International Foundation for Electoral Systems (IFES) and the CEELI Institute are hosting a series of regional ‘peer dialogues’ under the ECAC project, convening institutional and civil society partners in the region, embassy and donor representatives, and regional and global organizations focused on these issues. The third dialogue took place on June 22, 2021, and focused on CSOs monitoring the judiciary during the COVID-19 pandemic, challenges, approaches and recommendations.
The event was attended by representatives of IFES, CEELI Institute, Transform Justice, and public oversight bodies and civil society representatives from Albania, Bosnia & Herzegovina, Bulgaria, Montenegro, North Macedonia, Poland, Romania, and Ukraine.
During the peer exchange, participants discussed how the COVID-19 pandemic has affected the monitoring of the judiciary from a civil society perspective, potentially increasing risks of corruption. Common challenges include difficulties to identify urgent matters, be present in court hearings, and follow virtual hearings.
Laura Stefan, Expert Forum (Romania)
In the past years, the independence of the judiciary has been undermined, after the adoption of new legislation that reduce warranties that judges and prosecutors previously had. Some of those amendments were passed and became law, and others were declared unconstitutional by the Constitutional Court. The new government in power tried to give back the competences for investigating judicial corruption to the Anti-Corruption Directorate, but the bill that was tabled by the Government has been severely amended in the Parliament and currently the Opinion of the Venice Commission is awaited. At the moment, magistrates continue to be investigated by the Special Section.
Bilyana Wegertseder, BILI (Bulgaria)
Parliamentary elections will be held in Bulgaria on 11 July 2021 after no party was able or willing to form a government following the April 2021 elections. The COVID-19 pandemic and the need for remote services have accelerated the digitalisation of the Bulgarian justice system. At the moment, courts still struggle with the implementation of e-Justice. The system was introduced without taking into consideration the needs of the court, not being the interface of the software the appropriate for its purpose. The e-Justice process was interrupted after practitioners refused to use the new system, until a step by step program on how to implement the system was developed. At the beginning of this year, the system was improved. The reform of the judicial map, known as Model 4, envisages the closure of a large number of small regional courts countrywide and their conversion into territorial divisions of the nearest larger courts. It is very controversial. The types of cases under the jurisdiction of regional courts will be reduced. District courts will examine cases at the first instance, and appellate courts at the second instance. Part of the judges will be transferred to higher courts. Territorial divisions may try cases by video conference, or a judge will sit on site. The idea is to cut costs, but litigants may have to invest a lot more time and money to appear before a faraway court. All opinions received so far at the Bulgarian Justice Ministry in connection with a reform of the judicial map proposed by the Supreme Judicial Council (SJC) are negative.
Uglješa Vuković, Transparency International (Bosnia & Herzegovina)
The judiciary in Bosnia & Herzegovina is highly politicized and corrupt. When the COVID-19 pandemic emerged, in mid-March 2020, Transparency International (TI) was monitoring court proceedings corruption related cases in first and second stances courts as part as a special project were law students were present in court rooms. The first year of the monitoring, the year prior to the pandemic, TI monitored around 50 cases, with 25-30 students present in court rooms. At the end of that year, TI presented a monitoring report and key findings to the public, where one of the main findings was related to time management, as TI found out that there was an unreasonable time gap in court hearings, and also a very informal practice of negotiation about date of hearings stablished by judges, lawyers and prosecutors. In the second year of the monitoring the state of emergency was declared in some parts of the country, and almost all the courts postponed the hearings for 3-4 months. In that time, it was very difficult to organize present monitoring, as TI didn’t want to expose students to the danger of the virus by having them in court. Under those circumstances, TI decided to implement a passive monitoring by sending access information request to courts, asking them to deliver procedural decisions or any information relevant to the public. This way of monitoring is not as efficient as the normal monitoring.
Transform Justice has been working on the issue of digital justice for a very long time in England and Wales. Even before the pandemic, Transform Justice had a big program called Digital Court Reform. The idea was to use video links in court hearings and to put more court hearings in totally online form, and also to close many of the courts. This idea was supported by the judicial leadership. At the very beginning of the pandemic, the government enacted legislation in order to make even easier to use video links, which means every jurisdiction turned to mainly video-link hearings. Even though Courts are technically open, but there is very little media who go inside and report and even fewer members of the public. There is not enough evidence coming through from observation of what is happening in the courts, and with the pandemic that became even more difficult. At the beginning of the pandemic, the media and NGOs found quite a lot of difficulties in order to justify the right to travel to a court and being part of the hearing. Transform Justice has found difficulties with the video-link system, having situations where people with mental illness or when English was their second language increased their problem communicating with the court. Transform Justice has published articles on this issue and a report.
In Poland, Court Watch Poland has been monitoring the judiciary since 2010, sending volunteers to open hearings, and having few hundred volunteers each year gathering couple thousand hearings per year. During the first months of the pandemic, around 1/3 of courts issued orders not allowing any public or any media into the court rooms, and even in those courts where there was not order, there were difficulties allowing the observers to enter. This decision was supported by the Minister of Justice.
In Bosnia & Hercegovina, according to journalists who were monitoring the judiciary, some courts were very cautious, as courts are small, and in those cases where there were several actors in the proceeding, the court decision was to exclude the public in the room.
In Bulgaria, at the beginning of the pandemic, courts were closed for three months. There were not court hearings not even online, and just emergency cases were taking to court. When they re-open, just the parties and their representatives were allowed to be present.
In Romania, as in Bulgaria, the first reaction was to close the courts, although there were urgent cases that were still on, and those weren’t very transparent. Right now, courts are open, but there are more barriers to be present on a court hearing than before.