Courts had to improvise during the corona crisis

Publication research report on the consequences of the pandemic for the judiciary

In March 2020, the coronavirus caused court buildings to remain closed for more than two months. Only urgent cases were handled by telephone or online. Only by May 2020 were other cases gradually resumed. Researchers from Leiden University, Utrecht University and Radboud University investigated the consequences of the corona crisis for the judiciary. Their report was published recently.

The researchers looked at the consequences of the corona crisis for those seeking justice in criminal, civil youth and immigration law. "These areas of law often involve vulnerable citizens, with major interests at stake", explains Marijke ter Voert of Radboud University, one of the researchers involved in the project. "Think of the prolongation of detention, the removal of a child from its home, or building up an existence in a new country." For the study, interviews were held with judges, lawyers and other parties involved, surveys were conducted among those seeking justice and a fundamental rights analysis was carried out.

Communication problems and breakdowns

At the beginning of the corona crisis, the judiciary had to improvise. Because of statutory deadlines, sessions had to be held despite the restrictions, but various restrictions hereby came into play. Many physical court hearings were replaced by online versions, using tools such as Skype, or by hybrid sessions. Sometimes cases were even handled by telephone or in writing. This caused communication problems and technical malfunctions, especially in the first weeks and months. 

"In youth protection cases, for example, it was impossible for judges to check whether the parties were in a safe situation", says Eddy Bauw of Utrecht University. In immigration law, hearings often took longer because the interpreter and client were at different locations, making simultaneous interpretation impossible. Miranda Boone (Leiden University) adds: "At the beginning of the corona crisis, time slots were established (for criminal cases) within which telehearing sessions had to take place. This meant that there was not always enough time to deal with a case properly, so judges were faced with the difficult choice of adjourning cases or asking the defendant to waive his right to be present for the remainder of the period."

Not always an adequate alternative

"The surveys show that a majority of criminal law detainees experienced the modified course of events negatively. Many did not feel seen and heard by the changed approach", says Miranda Boone. "They cited problems with the quality of the connection and limited time slots. Detainees also cited the lack of direct and confidential contact with the lawyer as a major shortcoming. But they did experience it as an advantage that they were spared the trip to the courthouse and the long wait."

The restrictions sometimes clashed with various fundamental rights, including the right to a hearing and to effective participation. Many of the measures were unfortunately taken without any fundamental rights being weighed against each other in individual cases. Marijke ter Voert: "Online hearings can certainly bring advantages. They are more accessible for some groups, such as people with disabilities or people currently residing abroad. But benefits in terms of flexibility, time savings and cost savings cannot be simply set off against the fundamental rights of litigants. If this group cannot be adequately protected and supported, it is not an adequate alternative."

Assessment framework for the future

Most Covid restrictions have meanwhile disappeared, but the researchers advise the judiciary to be better prepared for the future. "An assessment framework must be drawn up, as a basis for the judge's decision on when to opt for a written hearing, physical hearing or (hybrid) digital hearing", suggests Marijke ter Voert. "It is also important to invest in the quality of digital hearings, for example in terms of technology and support, so that they can continue as a fully fledged alternative to physical hearings."

The project was financed with a research grant from the COVID-19 programme of health research subsidising agency ZonMw. Project leader of the research was Prof. M.J. ter Voert (Radboud University Nijmegen).

The Utrecht part of the research was led by prof. Eddy Bauw, professor of Private law and Administration of justice and programme leader of the Montaigne Centre. Other contribuants from Utrecht University were: legal anthropologist Marc Simon Thomas and Anne Janssen.