The pandemic that hit 2020 can only be described as a crisis, the total impact of which is yet to be fully assessed or comprehended. It is already seen by commentators as a two-pronged health and economic crisis, whilst it has already influenced discussions on labour participation, productivity growth and even social change. Whilst undoubtedly disastrous, COVID-19 is here to remind us that change is synonymous to development and evolution.
Justice is one of the areas that were adversely affected by the spread of the pandemic. Both law firms and clients in Cyprus have experienced the outcome of the pandemic in their business operations amidst the government's regulations issued by means of taking protective measures to address the crisis. In line with the said regulations, the Supreme Court of Cyprus issued its regulations dated 16/3/2020, pursuant to which the operation of the Courts of Cyprus in all instances is suspended until 30/4/2020 or until further notice, except for extremely urgent matters as these are outlined in the relevant regulations or where prior leave of the Court is obtained either for the filing or the hearing of a matter within the said period. As such, trials fixed are by default adjourned, causing further delays in the system and paralysing to a great extent access to justice.
It is therefore imperative that action is taken in order to confront any adverse effects that the current situation brought, including the provision of infrastructure so that Courts will be able to address such critical situations in the future. Numerous discussions were already made in particular as regards the need for reform and digitalisation as a means of combating delay in the delivery of justice. This topic has already attracted continuous criticism within European Union circles as a matter of securing efficiency and transparency in a country's justice system. The 2019 EU Justice Scoreboard of the European Commission shows that Cyprus is at a critical point as it scores low in the availability of technology as a means of improving access to justice and reducing delays and as such, costs.
A salient response to the above is the provision of e-justice tools, defined as the availability of technology, information and communication means for the administration of justice, both in terms of logistics and in terms of conducting hearings. Mutatis mutandis, such tools may also be utilised in arbitration proceedings by means of embracing remote working technology.
In Cyprus, the matter is governed in a quite limited extent. Giving evidence via video conference is regulated by section 36A of the Evidence Law, Cap. 9, which states that such facilities may be available for a witness located outside the Republic in any civil or criminal proceedings, provided that such arrangements are to the best interests of justice. It is well established that the "interests of justice" is a complex and multidimensional concept, assessed on a case by case basis in light of the general principles of justice (Hoppi ν. Panagi (1993) 1 J.S.C. 140). Courts retain full discretion to impose any terms as deemed appropriate which shall not conflict with any undertakings taken by the Republic pursuant to any international or bilateral agreement with third countries. However, case law on the matter suggests that leave to such request will be granted in exceptional cases by way of derogation to the established rule of law that requires witnesses to be physically present before the Court as live presence of witnesses is considered as aiding credibility assessment (P. & Chr. Seafood Express Ltd. v. Electricity Authority of Cyprus, Civil Appeal No. 277/09, dated 10/9/2014) and securing the constitutional right to a fair trial. The wording of section 36A has been interpreted by Courts as quite restrictive whereas practical implications were also taken into consideration by judges when delivering dismissive judgments to such applications in light of the fact that no legislation or guidelines are issued to date by the authoritative bodies that would allow Courts to positively assess such implications.
From a European Union perspective, the only relevant provisions are made in Council Regulation (EC) No 1206/2001 on cooperation between the Courts of the Member States in the taking of evidence in civil or commercial matters. The said Regulation only applies in civil or commercial matters for the taking of evidence in the context of the provision of assistance between Member States where evidence is intended to be used for purposes of judicial proceedings. The Regulation encourages the use of communications technology, such as videoconferences and teleconferences, to facilitate the process.
A prominent example of the change intended is UK's recent High Court trial which was conducted from a "virtual courtroom" using a video conferencing service that was also streamed live on YouTube platform (a high-profile case brought by the Republic of Kazakhstan and its national bank against a Moldovan businessman and others). This virtual trial was conducted in light of the emergency coronavirus legislation passed in the UK (Coronavirus Act 2020) that, though of a temporary nature, paved the way to the digitalisation of courtrooms. A similar approach has also been recently adopted by the English Commercial Court. The UK Supreme Court already had its own channel since 2013 and hearings are currently being conducted via video conferencing facilities, whilst selected Court of Appeal cases have also been live-streamed in the context of a scheme aimed at increasing public access to the justice system. Video and telephone conferences are also already used in hearings in lower-instance Courts of the UK whilst broadcast is allowed as regards the sentencing remarks of High Court and Senior Circuit judges in some of the most serious high-profile criminal cases across the country (The Crown Court (Recording and Broadcasting) Order 2020). In addition, hearings listed as suitable in civil matters, such as in interim applications or case management conferences, are already available to be conducted by telephone (Part 23 and Practice Direction 23A of the Civil Procedure Rules).
Led by the examples of UK Courts, various issues need to be taken into account for the realisation of such project, including among others:
- setting up video conference infrastructure to secure the quality of the proceedings,
- securing distant participation of all required attendees,
- arranging public broadcast by means of preserving open and transparent justice,
- ensuring proper conduct of the trial and familiarisation of attendees with the technology used,
- prompt provision of trial bundles to all participants,
- ensuring proper swearing in of witnesses,
- ensuring sequential interpretation where needed, and
- prior ascertainment and arrangement of the costs expected to incur.
Recent developments call for urgent action. Passing relevant legislation and regulations that will reform the current judicial system, at least in times of crisis, is imperative in order to keep the profession and Cyprus itself, as a service-based economy, up to their established international standards.
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