Access to justice and COVID-19-related state of emergency: litigation before the Court of Justice
— by Anjum Shabbir —
A preliminary ruling request pending before the Court of Justice concerning a challenge to the impact of state of emergency measures taken in response to the COVID-19 pandemic on fundamental rights, requested by a Magistrate in Lanciano, Italy, was officially published this week – XX v OO (C-220/20).
The Italian rules in question impose a state of national health emergency for a year, from 31 January 2020 to 31 January 2020, with provisions including suspension of administrative, civil and criminal court activities including hearings and various deadlines, with exceptions for urgent cases.
The referring court has asked whether certain provisions of the Treaties and the Charter enshrining EU values and fundamental rights preclude the state of emergency measures, having in mind in particular (but not only) access to justice rights concerning: the undermining of judicial independence, impact on judicial functioning, infringement of the principle of due process and equality before the law, and overall ‘paralysis of civil and criminal justice’.
There are several EU law rights referred to by the Italian court, among which is Article 47 of the Charter, on the right to a fair trial and an effective remedy.
Generally speaking, those rights could indeed be impacted by the closing of court buildings and courts ceasing to operate, making it impossible to: file cases (particularly when the statute of limitations is approaching), lodge appeals, serve notice on a defendant or respondent, lodge submissions, have access to a ‘fair’ hearing (if access to lawyers is impeded as a result of quarantine or other reasons), and a ‘public hearing’ (due to hearings being suspended), ‘within a reasonable time’ (as procedural and other deadlines as well as hearings may be suspended, the gathering of evidence stalled, and examination of witnesses affected).
Another right referred to is (Article 6 of the Charter), when the right to liberty and security may be affected in respect of individuals who may have to remain in pre-trial detention for a longer period, or those in custody expecting early release.
This is the Court’s first opportunity to examine whether such measures are justified under the Charter (Article 52) in that they are: in line with the EU’s values and fundamental rights; pursue a legitimate aim (a ‘general interest’ such as public health), are proportionate and strictly related to the purpose of public health protection, non-discriminatory, do not impair the very essence of the right, and are not indefinite measures.
The Court will do so taking into account that protection under the Charter is limited in scope to areas in which EU law rights are engaged (Article 51 of the Charter), such as in cross-border cases, and therefore in particular concerning cross-border disputes. The case does appear to concern a cross-border matter, as the referring court’s question includes Article 67(4) TFEU – the EU’s obligation to facilitate access to justice through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters, and Articles 81 and 82 TFEU – on the EU’s obligations concerning judicial cooperation in civil and criminal matters having cross-border implications (Articles 81 and 82 TFEU). (Click here for the European Judicial Network’s report on how cross-border judicial cooperation has been affected).
Elsewhere, another EU Institution has already commented on the Italian judicial system: Council Recommendation in respect of Italy’s national reform programme, published yesterday and taking into account COVID-19, has explicitly mentioned that state of emergency measures must comply with the foregoing, and that there must be ‘democratic oversight and independent judicial review’ of them, and has made the general recommendation that Italy should: ‘Improve the efficiency of the judicial system and the effectiveness of public administration’.
The case XX v OO presents an opportunity for the Court of Justice to apply a delicate balancing test to assess whether state of emergency measures in respect of the Italian judicial system have justifiably restricted EU law rights that have allegedly been breached. So far there does not appear to have been an assessment from an EU Institution concerning the impact of COVID-19 on the courts: the Commission is apparently monitoring state of emergency measures and gathering information on suspended deadlines, hearings and judicial cooperation, and a rule of law report from the Commission, expected in September, is expected to cover the matter (see also this JURI Committee meeting). However, its latest Justice scoreboard of July 2020 does not consider the impact of COVID-19.
The EU could create short-term, harmonised EU rules for case prioritisation for cross-border proceedings, and more long-term judicial reform, including greater investment in and a move toward new skills and technology systems. To consider that progressive approach, and putting aside the problems that may arise (such as access to resources, appropriate resources, appropriateness of measures), some authors have made proposals in this regard (click here).
Read the publication of the action here.