Analysis
14 July 2021

Preserving the primacy of due process and fair trial rights in the special context of the Coronavirus pandemic

Bastille Day Newsletter 2021 - Enforcement & Court Decisions

 

The Coronavirus crisis has confronted judges, lawyers, clerks, and litigants with unprecedented difficulties, which have sometimes led to an acceleration of the digitalization of justice and in particular of criminal justice[i]. This can notably be witnessed with the issue of “video-hearings” in criminal proceedings.

To face the peculiar situations generated by the crisis, several texts were adopted aiming at adapting the rules of criminal procedure and those applicable to the criminal courts, including Order no2020-303 of 25 March 2020[ii] and Order no.2020-1401 of 18 November 2020[iii] which have proved to be quite controversial.

Article 5 of Order no.2020-303 provides for the possibility to use audiovisual means of telecommunication before all criminal courts, except for those dealing with crime cases, without needing to obtain the parties’ consent[iv]. Article 2 of Order no.2020-1401 provides for the very same possibility before all criminal courts, no distinction being made[v].

On 12 February 2021, the summary proceedings judge of the Council of State (“Conseil d’État”), highest French administrative court, judged that Article 2 of Order no.2020-1401, insofar as it allows the use of videoconferencing in criminal courts, without the parties’ consent and without subjecting this option to any legal condition or any precise criterion, seriously infringed the rights of defense[vi].

This decision is in line with that of 27 November 2020, in which the Council of State also suspended the possibility for the Assize Court, criminal court solely responsible for judging crimes, to impose videoconferencing under the same conditions[vii]. In view of the oral nature of criminal proceedings, the Council of State emphasized the fundamental need for the parties to the trial to be physically present during the closing arguments, particularly because the accused has a right to speak last[viii].

However, the decision only applied to the hearing of severe criminal cases, due to their complexity. To the contrary, the Council of State considered that for criminal matters involving a lesser category of crimes, the increased use of videoconferencing was “made necessary by the great practical difficulties encountered by prison administration in extracting prisoners, given the particularly heavy burden imposed by the current health situation, and by the fight against the spread of the pandemic within prisons and judicial courts”[ix].

Furthermore, the Council of State reminded that judges were supposed to assess whether such difficulties justify the use of videoconferencing considering the inmate’s health and the stakes of the hearing, and to ensure that the means of telecommunication chosen enable certification of the inmate’s identity and guarantee the quality of the transmission and the confidentiality of communication, especially when it comes to attorney-client privilege[x].

Finally, the Council of State indicated that using videoconferencing could help avoid postponing hearings, thus contributing to the respect of the right of litigants to have their cases heard within a reasonable time[xi].

And yet, a month later, the Council of State censored Article 5 of Order no.2020-303, providing for the possibility of video-hearings before all kinds of criminal courts, for its “unconventionality”[xii]. In this decision of 5 March 2021, it stated that, given the importance of the guarantee attached to the physical presentation of the accused before the court, the fight against the Covid-19 pandemic could not justify any infringement to the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights[xiii].

It must also be noted that the Constitutional Council, in charge of analyzing the conformity of the legislation to the French Constitution, had already ruled on the unconstitutionality of Article 5 of Order no.2020-303. While recognizing that such a provision pursued “the objective of constitutional value of health protection” and satisfied the “constitutional principle of continuity of justice functioning”[xiv], the Constitutional Council ruled that Article 5 of Order no. 2020-303 is unconstitutional because the judges’ decision to use audiovisual means of communication in criminal cases is not subjected to any legal condition or bound by any precise specific criteria[xv].

It stems from these various decisions that the question of whether imposing video-hearings complies with the respect of defense rights is a sensitive one, certainly still subject to differing views. Besides, the Covid 19 crisis has raised not only videoconferencing issues, but also issues related to the public’s access to hearings (Article 4 of Order no. 2020-1401)[xvi] and the extension of pre-trial custody periods (articles 15, 16 and 17 of Order no. 2020-303)[xvii].

The challenge lies in deciding whether the restrictions imposed on the normal functioning of justice sufficiently guarantee due process and fair trial rights and are justified and proportionate to the sanitary situation at the time of the hearing[xviii].

Related content

Analysis
Lobbying : Declaration obligations of interest representatives in France
14 July 2022
Lobbying: Declaration obligations of interest representatives in France
Highlight on the disclosure obligations imposed on interest representatives in France, as provided for by Law 2013-907 of October 11, 2013, as amended by Law 2016-1691 of...
Publication
The Guide to Sanctions -GIR (2022)
10 July 2022
The Guide to Sanctions (2022) – GIR
Navacelle co-author of the third edition of the Global Investigation Review's Guide to Sanctions.
Publication
6 October 2022
Jurisdiction and powers of international arbitral tribunals when dealing with allegations of corruption
Stéphane de Navacelle and Juliette Musso discuss the issues of jurisdiction and powers of international arbitrators when faced with allegations or facts related to corru...
Press review
Press review - Week of 26 September 2022
30 September 2022
Press review – Week of 26 September 2022
In this press review, you will find an analysis of a recent decision of the French Cour de cassation which reiterates the legal obligations of financial institutions rega...
Press review
Press review - Week of 19 September 2022
23 September 2022
Press review – Week of 19 September 2022
In this week's press review, you will discover the criminal initiatives at the European Union level announced by the President of the European Commission, and the new Fre...
Press review
Press review - Week of 12 September 2022
16 September 2022
Press review – Week of 12 September 2022
In this week's press review, you will find three articles on white collar crime. Firstly, clarifications related to the cumulation of qualification for tax fraud and omis...
Press review
Press review - Week of 5 September 2022
9 September 2022
Press review – Week of 5 September 2022
In this press review you will find two cases regarding the criminal prosecution of foreign nationals. First, the review addresses the conviction confirmed by the French C...
Event
How to successfully conduct an investigation
8 September 2022
Webinar: How to successfully conduct an investigation?
Stéphane de Navacelle spoke at the EQS webinar on "Internal investigation in companies: our advice for successfully conduct an investigation!"
Publication
International Criminal Law, International Courts, and Judicial Affairs - ABA
5 September 2022
International Legal Developments 2021 in Review – American Bar Association
Navacelle co-author of the 2021 annual review of international legal developments of the American Bar Association International Law Section (ABA).
Press review
Press review - Week of 29 August 2022
2 September 2022
Press review – Week of 29 August 2022
In this press review you will find the implications for France following the delay of transposition of the European directive on whistleblowers. The French Conseil d'Etat...
Analysis
30 August 2022
Strengthening the effectiveness of the French “Blocking Statute”
Highlight on the 18 February 2022 decree and the 7 March 2022 order, which strengthen the competence of the Strategic Information and Economic Security Department (Servic...
Press review
Press review - Week of 25 july 2022
29 July 2022
Press review – Week of 25 July 2022
In this review, you will discover two CNIL’s recent decisions, the first one aiming at protecting data rental cars’ users and the second one aiming at regulating the ...
Press review
Press review - Week of 18 July 2022
22 July 2022
Press review – Week of 18 July 2022
In this review you will discover a Dalloz study on the growing control of the European Courts on arbitration matters, a campaign of the CJEU against arbitration which is ...
Podcast
reforms suggested by compliance professionals
21 July 2022
Vigilance: reforms suggested by compliance professionals
Simplification of the legal framework, exemption from criminal liability, better coordination of litigation, a future authority responsible for the duty of vigilance and ...