The COVID-19 pandemic has caused a terrible health crisis in the world and in Spain. And it was certainly necessary for the country to go under a state of alarm for only the second time since democracy returned, under Royal Decree 463/2020. On 6 May, after overcoming initial uncertainty, the Plenary of the Congress approved the fourth consecutive extension of the state of alarm until May 24. The amount of legislation passed since the initial decree has been enormous, such that the Official State Journal is an authentic collection of electronic codes for each of the subjects or branches of law involved.

Jurists, defence lawyers and officials furious about crisis in court administration

Against the background of this sea of legislation, it is important to highlight the judicial problems that have arisen. The health emergency caused by COVID-19 has provoked a terrible crisis in the administration of justice with broad consequences jurists, legal persons and normal citizens, both Spanish and foreign, involved in the court system.

The measures adopted under the state of alarm relating to the court system include the suspension of procedural deadlines (with some exceptions). And it is worth considering the specific measures proposed by the justice institutions to speed up judicial activity in the face of the foreseeable collapse during and after the state of alarm. The programme proposed and still open for more proposals by the Ministry of Justice itself, is inspired by the Urgent Response Plan drawn up by the General Council of the Judiciary, which has proposed over one hundred measures to counter this judicial collapse. The response to this from judges, prosecutors, defence lawyers and judicial officials was furious, and this response has been echoed in the media.

Court procedures taken online

The first advance in these so-called procedural and organizational measures of judicial activity happened with the approval of Royal Decree Law 16/2020 of 28 April, which is not exempt from criticism from the same professional sectors, even though only a few professional associations have expressed their opinion on the matter.

This last regulation, apart from clarifying how to calculate procedural deadlines (based on when procedures begin) and making sure various measures are in place in organisational headquarters, is part of a new judicial paradigm of telematic justice in place of face-to-face justice. The phrase "telematic presence" is seemingly contradictory as justice cannot be present and telematic at the same time according to the Spanish Royal Academy. A type of iJustice has been put forward to establish a difference with European e-justice (or iJusticia in Spanish) that will prevail. During the state of alarm and up to three months after it ends, all trials and hearings will be telematic, provided the courts have the means to do this. The only exceptions will be that "the physical presence of the defendant in trials for grave crimes" will be necessary. (Article 19.2).

It is unlikely that Spanish courts have all the resources needed to go telematic

The big question is whether courts really do have the means to make all procedures telematic, considering their historic lack of material and human resources. We must also consider the diversity of virtual environments that surround the Spanish Courts and Tribunals, depending on whether they are located in the so-called "ministerial territory" ascribed to the central government or in those regions that have transferred the competences in matters of justice according to the judicial organization chart. Therefore, if digitalization has not yet been fully implemented in the Spanish judicial system, despite the efforts being made to do so, it is clear that there is no common procedural system across Spain either, in spite of the announcement made by the previous government, not to mention the computer "crashes" that these systems sometimes suffer.

Defendants' rights being put at risk if they can't be in the courtroom

There are other mysteries within this telematic justice or iProcess in terms of the basic rights and procedural principles of the defendant, which are even more imperative in the criminal jurisdiction. Specifically, this blog has already expressed its opinion on the reduction of the right to defence and the consequent restriction of important procedural principles such as immediacy and publicity. The latter even in face-to-face justice, given the "order" of public access to the courtrooms, also provided for in the articles of the Royal Decree (article 20). In short, judges no longer ask to see and be able to empathize with the accused, but at least "hear and understand" them, which, during the coronavirus pandemic, does not always occur, not just because it can be hard to hear everything said over video conference, but also as defendants are wearing masks.

Therefore, at present, the telematic process should remain complementary and a reinforcement, never the alternative nor substitute of the face-to-face processes. However, last May 4, the Ministry of Justice announced in the Justice Commission of the Congress, the forthcoming digital transformation of the administration of Justice. Welcome everybody to the world of iJustice, soon an App on our smartphones.

This article was originally published by Rights International Spain