Sitting in corona time

Know your rights! A session in corona time?

As I write this column, the country is in turmoil because of the coronavirus outbreak. It is also evident in the prisons and courts. Licenses have been revoked, self-reporters do not have to report to serve a prison sentence for the time being, and visits have been postponed. Also at the Courts and Courts the effects are evident. The Judiciary has decided that all non-urgent cases will be postponed. In criminal law, only cases in which the defendant is in pretrial detention will continue. In these cases, ways to hear the parties via telephone or video link will be sought as much as possible. Starting May 11, hearings will be scheduled where detained defendants are also present in the courtroom. The door to the courtroom is gradually opening again.

As I write this column, the country is in turmoil because of the coronavirus outbreak. It is also evident in the prisons and courts. Licenses have been revoked, self-reporters are not yet required to report to serve a prison sentence and visits have been postponed. The effects are also evident at the Courts and Tribunals. The Judiciary has decided that all non-urgent cases will be postponed. In criminal law, only cases in which the defendant is in pretrial detention will continue. In these cases, ways to hear the parties via telephone or video link will be sought as much as possible. Starting May 11, hearings will be scheduled where detained defendants are also present in the courtroom. The door to the courtroom is gradually opening again.

In times like these, it is important that as a defendant you can continue to exercise your defense rights. What the past month and a half has proven is that this cannot be taken for granted. There is a particular situation where the rights of the accused sometimes threaten to get snowed under. I refer in particular to the right of the to be present during the hearing of his or her case.

Some courts are actively asking whether the accused wishes to waive his or her right to be present during the hearing of his or her criminal case. You should not simply agree to this. Of course, you could waive if you fully invoke your right to remain silent and wish to do so at the hearing. However, it may also be the case that you want to tell your story at the hearing. By waiving, you deprive yourself of that opportunity. Your lawyer cannot tell you how it went since he or she (usually) was not there himself.

The law includes a provision allowing a hearing to take place by video link. The judge may determine that a hearing or interrogation will take place by videoconference. This therefore makes it possible for hearings to proceed without a suspect, witness or expert being present in the courtroom themselves. On the one hand, this is a pleasant idea because you are less likely to be infected with the virus through, for example, transportation, contact with prosecutor's police and a stay in a holding cell.

In practice, however, there are major drawbacks to this. For example, time periods of 45 minutes have been established from the PIs. When the time is up, the next suspect may use the video link. Whether your case has already been fully processed by then or not does not matter. As a result, you run the risk of not getting everything from your hearing or of not being able to adequately express what you consider important for the handling of your case. Non-verbal reactions are also much less clear when a video link is used. In the Dutch criminal process, where the judge must obtain the conviction, based on legal evidence, that you committed the crime, this is not a pleasant thought. In many cases, a lot is at stake for the accused.

In many cases, there is no guarantee that the suspect can consult confidentially with his or her attorney during the hearing even though this may sometimes be necessary. Finally, we see that the video connection cannot always be established and the interrogation eventually takes place by telephone. So there are quite a few disadvantages to attending a hearing by video link. It is therefore not for nothing that the Dutch Lawyers Committee for Human Rights has expressed its concerns about this.

It is important to know that you do not have to agree to the substantive hearing of your case by videoconference if the case is heard by the plurality chamber. In that case, videoconferencing can only be used if the defendant or lawyer gives permission. Also discuss this with your lawyer so that transportation to the Court can still be arranged if you do not want the case to be heard by videoconference. After all, the basic principle is that you can be present during the hearing of your own criminal case. This is one of the main principles of the right to a fair trial.

During these times, it is important to discuss with your attorney what is most important to you, the prevention of contamination, the possible delay of the criminal case, being present at the hearing yourself. Together you can then propose the best possible solution for you in which your right to a fair trial is best guaranteed.

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