According to the Council of Europe’s Consultative Council of European judges (CCJE), the main challenge posed by the pandemic has been to ensure that the public health emergency is not used as a pretext for human rights infringements and that new legal measures are applied with strict respect for human rights obligations. In a special statement, CCJE President Judge Nina Betetto underlined that a balance must be struck between public safety, on the one hand, and the enjoyment of fundamental rights and freedoms, on the other. Another key principle is maintaining the independence of the judiciary - in the aftermath of the crisis, no “interim” judges or “special courts” should be established, as this would undermine judicial independence and create a risk of politicisation.
The CCJE statement also urges judicial systems to adapt to the changing circumstance, by using modern technology to encourage teleworking and teleconferencing of judicial proceedings, to enable the remote hearing of witnesses, experts and defendants. This approach is of great interest in the case of a pandemic, avoiding limitations on the functioning of courts. Adequate resources need to be provided to make this possible.
Courts should also consider applying, whenever possible, non-custodial measures and a reduction in prison sentences, in order to avoid overcrowding and prevent the dissemination of the disease. Moreover, despite the emergency, training initiatives should not be suspended, and online training should be considered on a national and European level as soon as possible.