Telematic judicial proceedings

Telematic proceedings on the occasion of COVID-19

After the declaration of the state of alarm, the telematic hearings and trials were established. Its regulation is contained in Royal Decree 463/2020 of March 14, 2020. In this way, it was intended to curb the contagions that were increasing and prevent the collapse of the judicial system.

Royal Decree-Law 16/2020 of April 28 provides for the holding of procedural acts with the telematic intervention of the parties called to the Act. Article 19 gives preference to online trials and hearings. Provided that the Courts and the Prosecutor’s Offices have the technical means at their disposal to be able to carry them out. Paragraph 2 of the same article refers to the criminal jurisdictional order. Which foresees, it will not be possible when there are trials in which the accused is charged with a serious crime. Since, they will be required to be present  in Court the act.

Many lawyers point out that the proceedings are not held in a virtual environment. Rather, they are held in a traditional Courtroom and only certain participants are allowed to intervene online. And all this, under certain circumstances and requirements equal to those of face-to-face proceedings.

The pressure exerted by the General Council of Spanish Lawyers and the Bar Associations has been very well known. Their claim was to impose postponements in the cases of family members of lawyers infected by the pandemic. However, the CGPJ insists that this is a decision that will be in the hands of each Judge or magistrate concerned. For this reason, the new appearance of this modality of proceedings has been very beneficial for cases such as this one.

Guide for the celebration

The Standing Committee of the General Council of the Judiciary approved a guide. This guide offers recommendations for the conduct of proceedings through technological means. But without violatin, in any case, the principles and guarantees protected by law.

But first, it is worth remembering that art. 229 LOPJ already regulated the application of this form of procedural action. And Royal Decree 16/2020 establishes that the telematic way will be the preferred way to hold the proceedings.

The Guide addresses the form of celebration, aspects for the use of telematic means, the place and the minimum requirements to be taken into account for the procedural acts.

The first of these distinguishes between internal and external proceedings. In addition to the precautions to be taken to safeguard confidentiality. And reserves, when so established, the publicity, the intangibility of the means of evidence and the exercise of the right of defense.

The second deals with internal proceedings (judges’ meeting and deliberations, among others) and external proceedings. Within the latter, those involving only legal operators (attorneys, lawyers, prosecutors) and others involving citizens. The latter includes trials in which evidence is to be taken (interrogation of the parties, expert or witness evidence).

Thirdly, it is dedicated to the most suitable places for the connection of the intervening parties. In the case of external proceedings, the Judge or Magistrates will be constituted at the seat of the Court or Tribunal.

And finally, the one related to the minimum technical requirements. The technical services of the General Council of the Judiciary will be those who verify the fulfillment of the demanded requirements.

Si te ha interesado este artículo no dudes en leer:

Precautionary measures in civil proceedings

Precautionary measures: the legitimate interests of the parties, its characteristics and its regulation in the Civil Procedure Act.

Advantages of telematic trials

The most relevant of all the reasons that we could find is that it avoids the risk of contagion. Many of the courts do not have the minimum security measures. Their infrastructures do not allow keeping the safety distance or do not have screens or ventilation systems.

In addition, unnecessary trips and waiting times in the Courthouse are avoided. The delay of the celebrations is very common in the Courts. This is a great economic saving and above all time saving for lawyers, solicitors, witnesses, etc. Although it is also true that sometimes you have to wait in front of the computer until they give you access to enter. The difference is that it is always more comfortable to wait seated in the distance.

Another of them is the speeding up of trials suspended during the state of alarm. In this way, many courts have been able to hold some of the trials they had to suspend due to the pandemic. Thanks to the fact that it is not necessary to use the Courtroom.

Disadvantages of telematic trials

Well, although the holding of the proceedings through this means is very beneficial, it also entails great disadvantages.

The identity of those appearing is not guaranteed, although the Counsel for the Administration of Justice is in charge of accrediting the identity in the video call.

Witnesses may be affected in terms of their spontaneity. Because even if it were difficult, it would not be impossible for them to be instructed or dictated the answers they have to say.

Occasionally, during a Trial, the next trial has crept onto the screen. The trial has not yet concluded and the scheduled time has been exceeded. And on other occasions, the connected users have been expelled by the system, which has not allowed them to access again.

As for the attorneys, the Lexnet platform has also been giving problems. This is used for communications between the Court and the professionals, which has been repeatedly collapsed.

Conclusions

Telematic judicial proceedings are an almost perfect solution to reduce contagion and the risk produced by COVID-19.

It is a step forward on the part of the Judicial Administration in terms of the modernization of its means. Although an economic investment is necessary to provide the judicial system with sufficient and effective means.

Although this methodology will not solve the structural problems that the Administration has been dragging for so many years.

If this article has been of interest, we also suggest you to read the following article published on our website: Rebus sic stantibus clause in business premises leases after covid-19.