The Administration of Justice is immersed in a de-escalation process that will have its key moment this Thursday, June 4. That day, the courts and tribunals will pick up the pulse thanks to the lifting of procedural deadlines throughout the national territory. The measure will put an end to almost three months of hiatus in which only extremely urgent procedures have been processed. However, nothing will ever be the same as before: Covid-19 issues will continue to take precedence, there will be morning and afternoon trials, online appearances, and limited seating capacity in courtrooms to avoid crowds. A new normality that will mark the day to day of legal operators, at least until the end of the year.
The return of justice operation began on April 15 with the opening of Lexnet, the management system for telematic notifications. The documents have been received in the registers and distributed among the different courts, although they have not yet been admitted. The question is: what order of processing should be followed from June 4?
Preference order
Royal Decree Law 16/2020 contains some guidelines to which the agreements of the General Council of the Judiciary (CGPJ) must be added. On the one hand, the services declared essential during the validity of the state of alarm (urgent internments, protection orders, etc.) and all causes related to the coronavirus will take precedence between now and the end of the year. On the other hand, the term of all procedures will be computed from scratch and the time to file an appeal before those resolutions that have been notified before June 20 will be doubled.
The problem is that the magistrates are not clear how to combine the indication of new trials with that of those who have been suspended. “Everything will depend on the dynamics of each judicial office. The judge will have to assess which appointments he can keep and which ones he will have to schedule little by little as the months progress, ”says María Jesús del Barco, spokesperson for the Professional Association of the Magistracy (APM).
Reincorporations
For now, the judicial organs continue to warm up engines. Last week, between 60% and 70% of officials rejoined, and it is expected that 100% of the workforce will do so on June 9 with the application of phase 3 of the de-escalation. The spokesperson for the CSIF officials union, Javier Jordán, criticizes the ministry for designing a staged system independent of the health situation of each province. “There are capitals that went to phase 2 in justice while their population was still in phase 1 overall. It is quite a contradictory fact and shows that the Government is following a different criteria than the scientific one. Possibly because he is being pressured, "he says.
Sanitary measures
Beyond the phased system, the organization of work in the courts in the coming months will be conditioned by health regulations. Thus, for example, it is expected that, in those locations where the minimum safety distance cannot be guaranteed, officials will be divided into morning and afternoon shifts. The idea, says Jordan, is that 70% of the officials continue working in the usual hours, from 8 to 14 hours, and the rest temporarily change their working hours: from 14 to 20 hours. This change, clarifies, will be in principle voluntary, unless not all places are covered, in which case "rotating shifts will be established."
Javier Jordán also denounces that there are many differences between territories. "We see that there are autonomies that have been very well prepared for the reopening of the judicial offices and others that have hardly any stock of protective equipment," which compromises, he asserts, the safety of workers and citizens. For his part, Rafael Lara, president of the National College of Lawyers of the Administration of Justice, complains that the Minister of Justice, Juan Carlos Campo, "has not considered it appropriate" to perform serological tests on all officials. He also misses separation screens in many courts.
Limited access and capacity
The main concern is, in any case, to avoid possible infections. For this reason, measures must be implemented at all sites to minimize contact between staff and attending citizens, and to ensure social distancing. First, controls and restrictions on access to courts will be established. It will be the judge who decides the maximum capacity of the venue according to the dimensions of the room. Officials denounce, however, that when regulating capacity, no consideration has been given to waiting areas. According to Jordán, the corridors are very crowded spaces where "you can get to live risk situations". For their part, the prosecutors have requested a telematic channel for direct communication with the courts to help avoid crowds.
As a complementary measure, the tour of the judicial headquarters will be done with a mask, which must be brought from home by users who access by appointment. Likewise, the rooms will have to be disinfected and the microphone covers must be changed between trial and trial. If these minimum precautions are not complied with, the lawyers "could allege it as a reason for suspension of the hearing," says Maria Eugènia Gay, dean of the Barcelona Bar Association (ICAB).
Telejudices
The social distancing required by the fight against the pandemic has also caused the jump from face-to-face judgment to videoconferencing. The decree law prioritizes, for a few months, remote appearances. According to Gay, the higher courts have already advanced that the vast majority of procedures will be telematic, "limiting our presence in those where it is strictly necessary." However, some jurists have expressed doubts regarding the guarantees and security of the telejuicios.
In the practical field, María Jesús del Barco poses difficulties such as controlling that the witness is not being dictated to by the answers. In her opinion, this technology can be used for simple matters, but, according to predictions, "in the vast majority of cases there will be face-to-face trials because we are not yet ready." The CGPJ has published a guide to establish a series of guidelines on the conduct of online trials. Thus, "low-quality video conferences", such as Skype, Teams, Zoom, etc., may not be used for witnesses, interrogations or experts. The immediate needs of the procedural act will often make the use of this technology unfeasible, such as in the statement of a defendant. On the other hand, for telematic actions involving people other than professionals, it is recommended that they be carried out with the consensus of the parties.
Gay defends that telematic procedures are a great advance that should be definitively implemented. For others, it is a challenge that can only be assumed with guarantees if you invest in computer equipment and adapt the legislation. This is the opinion of Rafael Lara, who has asked the ministry to stop because the security of the data, for which the lawyers are responsible, "is not guaranteed."
Skillful August
Lawyers and attorneys this year will have to be aware of citations also in August, a measure that has caused great rejection among these professionals. Finally, the recommendation of the CGPJ that magistrates go on vacation preferably this month has served to calm the waters. According to Gay, this change in criteria "will make it a more effective and less aggressive measure for the reconciliation of the legal profession."
Once the summer is over, you should be alert to possible outbreaks of the virus. In this case, says Jordan, the ministry would go backwards in the phase system. The CSIF spokesman proposes that a special contingent of interim be created to cover possible casualties and prevent the processing of files from being paralyzed again. A situation that, for Del Barco, would be disastrous, since "justice cannot be stopped indefinitely".
María Eugenia Gay, dean of the Barcelona Bar Association
"We are confident that the technological changes that are implemented can last beyond three months and that a new model of justice will be consolidated"
María Jesús del Barco, spokesperson for the Professional Association of Magistrates
"I am quite skeptical about holding telematic trials preferentially because the courts are not prepared"
Javier Jordán de Urríes, spokesperson for the CSIF Justice Union
"We cannot expect the courts to work at full capacity overnight, the first thing is the safety of citizens"
Juan Carlos Estévez, President of the General Council of Attorneys of Spain
"The return to judicial activity could have occurred earlier if the necessary security measures had been adopted from the outset"
Rafael Lara, President of the National College of Lawyers of the Administration of Justice
"We agree that it is necessary to reactivate justice from June 4, but we need to establish clear procedural protocols"
The Covid courts, the Government's solution to the judicial collapse
- Litigation. The Ministry of Justice foresees a significant increase in litigation as a consequence of the socioeconomic crisis caused by the coronavirus. Specifically, it estimates that only during 2020 the volume of lawsuits will grow by 31% in the social jurisdiction, 30% in the civil order and 35% in the contentious-administrative channel.
- Reinforcement. To address this increase in workload, the Executive has promoted by royal decree the creation, before December 31, of 23 specialized courts that will temporarily attend to matters arising from the pandemic.
- Affairs. In principle, the Covid courts would hear all those matters classified as preferential by RDL 16/2020. Among them, the demands related to the legal moratorium on leases and mortgages; the appeals that are filed against the resolutions on public aid planned to alleviate the economic effects of the pandemic; the processes for dismissal during the state of alarm; the individual or collective challenge of temporary employment regulation files (ERTE) and conflicts over the recovery of recoverable paid leave.
- Functioning. The law has not endowed these new bodies with either personnel or a specific financial allocation. Therefore, it is most likely that they will be assigned to the judges of territorial affiliation and lawyers of the Justice Administration in practice. The mobility of officials between judicial bodies of the same jurisdiction and locality is also foreseen.