Lessons from the COVID19 crisis: How the courtroom became (not) virtual (2)
The judiciary has successfully mastered the COVID lockdown and has entered a “permanent crisis mode”. What has the COVID-19 pandemic changed about the future of digital justice? We have already reported here on the immediate response of the justice sector to the COVID-19 pandemic. While it is certainly premature to draw definitive conclusions for future developments, an attempt will be made here to formulate theses.
Thesis 1: Main focus of digitisation in the justice sector will not change
The vision formulated in 2016 by the eJustice.CH association for electronic justice in Switzerland is as follows: “Judicial proceedings will be initiated, conducted, concluded and published in electronic form. All procedural steps and all business transactions will be conducted electronically.” The formulated concretisation of the 2016 vision reveals that the focus at that time was largely on business and document traffic and document management, and not, for example, on replacing hearings, negotiations and meetings with video telephony. This corresponds to the existing scope of the “Justitia 4.0” project, which aims to establish a justice platform for document exchange and an electronic file. Finally, this focus is also reflected in the current legislative project on the Federal Act on the Platform for Electronic Communication in the Judiciary (BEKJ), which is currently being consulted. The background to this focus is, on the one hand, the perception of the problem. There is a general consensus that mountains of files, carrier changes and repeated data collection processes are fundamentally superfluous and undesirable. From a practical point of view, it can also be assumed that a user-friendly solution for electronic transmission that is suitable for everyday use and the expanded possibilities of the digital file are likely to meet with acceptance. Finally, from a fundamental rights point of view, the electronic transmission of documents and files is hardly likely to restrict, for example, the right to be heard, especially since no one is prohibited from printing out a document after or before transmission if he or she prefers to hold paper in his or her hand. Negotiations and hearings with personal presence on site, on the other hand, were not perceived as a problem by Pre-COVID, but as a matter of course. The small-scale nature of the Swiss judicial landscape also contributes to this: according to a research study, there were a total of 288 courts in Switzerland on 22 May 2014. In civil proceedings, the judicial authority at the location of the defendant usually has local jurisdiction; in criminal proceedings, it is usually the one at the location where the offence was committed. In addition, local lawyers are regularly called in. In principle, the parties and their representatives can therefore reasonably be expected to travel to the competent court in person and this does not constitute an obstacle to access to the court. With regard to the adoption of “virtual court hearings” into normal operation and ordinary law, increased challenges of a practical and legal nature arise. The trial is of central importance in judicial proceedings. At least in the “archetype” of the trial, it is the “forum” where evidence is taken, parties and lawyers are heard and, finally, justice is pronounced in full view of everyone and, unless there are grounds for exclusion, in public. The consequences of conducting trials digitally with regard to the administration of justice by the courts, the acceptance of the verdict, the willingness of the parties to reach a settlement, and the guarantee of procedural safeguards (and publicity) are still unclear. However, a selective expansion of the use of videoconferencing was already initiated before the pandemic: The Federal Council’s dispatch and draft of 26 February 2020 on the revision of the Code of Civil Procedure provide that, analogous to criminal proceedings, witness examinations, party questioning and statements of evidence may be conducted by means of video conferencing (esp. nArt. 170a, 187 and 193 CCP). In this context, particular consideration was given to proceedings with international points of contact.
Thesis 2: The infrastructure that has been built up will not remain unused
The COVID crisis has undoubtedly removed hurdles in the establishment and expansion of the digital infrastructure and increased the acceptance of digital tools and decentralised operation. Due to the crisis, new technical and organisational measures were taken to maintain the operation of the justice system. Sometimes planned investments, e.g. in video conferencing systems, could be brought forward to be used during the pandemic. As already stated in the first part on the lessons learned from the COVID crisis, a quantitative and qualitative overview is lacking. It is also unclear to what extent the possibilities of telephone and video conferencing, which have been expanded by means of emergency law, have been exhausted by the judicial authorities. It seems clear that the infrastructure set up, for example, to enable home offices or video conferences will of course continue to be used for the time being. Along with the organisational measures, it will form the backbone of future pandemic and crisis planning in the justice sector and enable important experience to be gained. The crisis and the associated use of new resources also offers a unique opportunity to gather experience for future digitisation steps. The “learnings” from the crisis are all the richer the better a targeted and documented examination of the situation, the approaches and solutions chosen and the experiences made with them. Classically, these discussions take place in retrospect in the form of “debriefings” after the end of a crisis. In view of the existing permanent state of crisis, it seems that in the present situation an in this blog the appointment of “learning and innovation officers” in the organisations or teams who are responsible for continuously documenting the problems that arise, the measures taken and the effects: “The point of this (…) is that during a crisis people will do things they have never done before. The situation will be complex or even chaotic, so the ‘business as usual’ rules do not apply. People will probe complex problems to see what might work, or just take direct action in a chaotic situation. Some things will work, some things will fail, but each and every action is an opportunity to learn ‘something’. “
Thesis 3: The new forms of work will remain
Closely related to what has just been said is the third thesis, according to which the new forms of work introduced during the crisis will also continue. Home office – in a form adapted to the situation and with regularity – is also likely to become indispensable in the justice sector. The ongoing digitalisation in the justice sector (see thesis 1) will further promote and facilitate decentralised operations in the future.
-  https://www.ejustice.ch/de/vision_schweiz.html
-  https://www.admin.ch/ch/d/gg/pc/pendent.html#EJPD (accessed 19.11.2020)
-  The German “special lawyers’ mailbox” (beA) can serve as an example of a rather less user-friendly solution: the manual for it comprises 370 pages: https://wiki.bea-brak.de/content/help/bea_hilfe.pdf (accessed 15 December 2020)
-  Emblematic of this is the fact that the Swiss Code of Civil Procedure does not explicitly mention the conduct of hearings with physical presence in court, but takes it for granted.
-  Dispatch on the Amendment of the Swiss Code of Civil Procedure of 26 February 2020, BBl 2020 2750 f.
-  https://whatsthepont.blog/2020/03/18/is-anyone-deploying-innovation-and-learning-people-alongside-covid-19-response-teams/