COVID-19 and the administration of justice
Four Supreme Court judgments illustrate the impact of the coronavirus health crisis on the administration of justice.
Summoning the opposing party in proceedings
In March 2020 the government introduced social distancing (people were asked to remain at a distance of 1.5 metres from each other) to control the spread of coronavirus. This case was concerned with the implications of social distancing for bailiffs serving writs.
According to the law, a bailiff hands a writ to the person for whom it is intended, or to another person, as described in article 46, paragraph 1 of the Code of Civil Procedure. If that is not possible, the bailiff leaves a copy in a sealed envelope at the person’s place of residence, and if that alternative is not practically possible either, they immediately put a copy in the post (article 47, paragraph 1 of the Code of Civil Procedure).
Shortly after the coronavirus crisis began, the professional organisation for bailiffs (KBvG) published guidelines stating that, in view of the risk of transmission, if a bailiff does not consider it safe to serve a writ according to the general rule, they may leave a copy of the document in a sealed envelope at the addressee’s place of residence without ringing the doorbell first.
In this case one party had lodged an appeal in cassation, summoning the other party by means of a writ left by the bailiff in a sealed envelope at a place of residence on 30 March 2020, in line with the KBvG guidelines. The defendant did not enter an appearance in the proceedings. The Supreme Court had to decide whether to give a default judgment against the defendant.
Previously, a number of district courts had ruled differently on the question of whether the bailiff’s actions, in accordance with the KBvG guidelines, were legally valid. They had deemed it relevant that the bailiff could have chosen to hand the writ to the addressee while remaining at a distance of 1.5 metres. At the time there was no legislation covering such a situation, although a bill addressing this issue was pending (COVID-19 (Emergency Provisions) Act, Parliamentary Papers, House of Representatives 2019/20, 35457). The Advocate General’s advisory opinion in this case (ECLI:NL:PHR:2020:442) prompted a response from the government in its memorandum of reply in the course of the legislative proceedings (COVID-19 (Emergency Provisions) Act, Parliamentary Papers, House of Representatives 2019/20, 35457, no. 8). The emergency legislation ultimately entered into force on 17 June 2020, with retroactive effect to 16 March 2020. Section 1 of the Act states that for the application of article 47 of the Code of Civil Procedure (‘the Code’), it can be deemed not practically possible to leave a copy of a document with one of the persons referred to in article 46 of the Code for the duration of the period in which the RIVM guidelines advise social distancing due to the risk of infection with COVID-19.
The Supreme Court ruled that with respect to writs issued as of 16 March 2020, the condition ‘not practically possible’ within the meaning of article 47, paragraph 1 of the Code is met if in a specific case the bailiff concludes that it would not be wise to observe the general rule of service in person (article 46) in view of the RIVM guidelines on social distancing to control the spread of coronavirus. In such cases the bailiff must note their conclusions on the writ.
The Supreme Court concluded that the bailiff’s service of the writ was legally valid. The judgment was given by default.
HR 19 juni 2020, ECLI:NL:HR:2020:1088 (Supreme Court, 19 June 2020)
Remote examination of parties
Shortly after the beginning of the coronavirus crisis in March 2020, a psychiatrist had a telephone consultation with a patient in order to assess whether the extension of an emergency mental health order was needed. The order in question involved temporary compulsory care and committal to an institution (under the Compulsory Mental Healthcare Act). The psychiatrist concluded that in view of the patient’s needs, the order should be extended.
The district court had to decide whether to grant an order extending the emergency mental health order. In view of the coronavirus restrictions, the court decided not to hold an in-person hearing. The hearing therefore took place by telephone. The person in question was offered the opportunity to be heard by telephone but declined to take it. Her lawyer did participate, however. The district court granted the extension of the emergency order.
The questions before the Supreme Court were whether it was sufficient for the psychiatrist to hold a telephone consultation and whether the district court was permitted to examine the person concerned and her lawyer by telephone.
The Supreme Court ruled that the telephone consultation with the psychiatrist was sufficient. In such situations the psychiatrist must be able to account for why a face-to-face consultation was neither possible nor responsible and to obtain sufficient insight into the patient’s state of health. With regard to the question of whether the district court was permitted to conduct its examination by telephone, it was important to note that the COVID-19 (Temporary Measures – Justice and Security) Act entered into force on 24 April 2020, with retroactive effect to 16 March 2020. Section 1 of the Act reads as follows: ‘If in connection with the COVID-19 outbreak it is impossible to hold an in-person hearing in civil and administrative law proceedings, oral proceedings can take place by means of a two-way electronic communications channel’. In the circumstances of the case, there was thus a sufficient statutory basis for the district court’s decision to offer only the opportunity to be heard by telephone. More generally, the Supreme Court added that, if an in-person hearing would be irresponsible, an alternative to personal contact must be sought that does as much justice as possible to the interests of the person concerned. A two-way audio-visual connection is preferable to a two-way audio-only connection for both the psychiatric examination and the court hearing, since the former allows for better interaction between the parties and between the parties and the court.
HR 25 september 2020, ECLI:NL:HR:2020:1509 (Supreme Court, 25 September 2020)
Public hearing and judgment
Since the lockdown imposed in the spring of 2020, the COVID-19 pandemic has had a considerable impact on court activities. Court buildings closed their doors to the public on 17 March 2020 and only ‘urgent cases’ were heard. From 17 August 2020, after the layout of court buildings had been reorganised to reduce the risk of transmission, a limited number of members of the public could once again attend hearings in person or be present when judgments were pronounced. Access to court buildings and public hearings always remained available to the press.
This case concerned the following question. If members of the public are denied access to the courtroom, can hearings and the pronouncement of judgments still be deemed to be public? Does the fact that access to the court building has been restricted mean that a particular hearing was not public, despite it being described as such in the official record of the hearing?
Having read the advisory opinion of Advocate General Alex Harteveld, the Supreme Court ruled that the essence of the question was as follows. ‘Given the necessity for such restrictions to protect public health and the need to guarantee the proper administration of justice by allowing in-person hearings to continue as far as possible for very urgent cases in particular, can the interests served by a public hearing – especially that of guaranteeing the public accountability of proceedings and of promoting public confidence in the judicial system – be safeguarded effectively in another manner?’ In that light, it was possible for the district court hearing the extradition proceedings at issue to conclude that the hearing was indeed public since the court had taken account of the fact that the press were permitted to attend, allowing for proper scrutiny of proceedings. The complaint that the judgment had not been pronounced in public was also dismissed on the grounds that members of the press were permitted to be present. The Supreme Court commented that the public nature of judgments can also be promoted in other ways, for example through publication.
HR 15 december 2020, ECLI:NL:HR:2020:2008 (Supreme Court, 15 December 2020)
Judge in self-isolation
This case was concerned with the electronic communication technology which was rapidly rolled out in the pandemic. Initially it was used in urgent cases – for example, where pre-trial detention was at issue – to enable proceedings to continue without the persons concerned or their counsel having to be physically present in the courtroom. The COVID-19 (Temporary Measures – Justice & Security) Act contains a provision designed to address this situation. Under the Act, an in-person hearing in the courtroom can in certain cases be replaced with oral proceedings using two-way electronic communication, such as conference or video calls.
One situation that had not been regulated arose when, during the second wave of coronavirus infections in the autumn, one of the justices in the full-bench division of an appeal court took part in a hearing via ‘Skype for Business’, a two-way audio-visual connection. The justice in question was in self-isolation with his family because one of them had symptoms associated with COVID-19. Both the defendant’s counsel and the advocate general agreed to this method of operation. The case prompted Procurator General Jos Silvis to apply for cassation in the interests of the development or uniform interpretation and application of the law.
Is it permissible for the merits of a criminal case to be heard in court when one of the judges is not physically present? The Supreme Court concluded that it was, provided that only one of three judges participates using digital technology and the reason for their absence from the courtroom is directly related to the coronavirus crisis. This means that the single-judge courts trying cases cannot operate in this way. The judge who is not in the courtroom must be able to observe through the video link what is happening in the room and must – whether wearing judge’s robes or not – be visible and audible to the persons present in the courtroom. At an in-person hearing, the clerk is present, as is the representative of the Public Prosecution Service, while a second representative can participate digitally. Counsel has the right to be physically present but in the interests of the legal assistance they provide to the defendant may choose to take part through a two-way audio-visual connection or another means of electronic communication.
HR 15 december 2020, ECLI:NL:HR:2020:2037 (Supreme Court, 15 December 2020)