Remote Court Hearings, Public Oversight! JRF Statement on the Implementation of the Special Act on Judicial Procedures During Severe Communicable Disease Epidemics

On June 18, during its special session, the Legislative Yuan passed the Special Act on Judicial Procedures During Severe Communicable Disease Epidemics on third reading, authorizing courts, during periods of severe communicable-disease outbreaks, to conduct proceedings using remote audiovisual technology. The Act was promulgated by the President today and has now entered into force.

Because the Judicial Yuan's draft raised concerns about diminished procedural and human-rights safeguards, the Taiwan Bar Association, Taipei Bar Association, Taiwan Association of Criminal Defense Lawyers, Judicial Reform Foundation, Taiwan Jury Association, and Chinese Association for Human Rights, among others, successively issued statements and proposed amendments. These efforts prompted opposition parties to scrutinize the draft more closely. Legislators Li Kuei-Min and Yeh Yu-Lan of the Kuomintang, Lai Hsiang-Ling of the Taiwan People's Party, and Chen Chiao-Hua and Chiu Hsien-Chih of the New Power Party all worked during the negotiations to strengthen human-rights safeguards. At the same time, the Democratic Progressive Party and the Judicial Yuan actively communicated with the opposition parties, ultimately producing a cross-party consensus that incorporated recommendations from civil society.

	Civil Society Recommendations	Passed Provisions
1	Require remote-hearing procedures to comply with the principle of public trial.	Article 3, Paragraph 1
2	Require the consent of the defendant or juvenile before conducting a remote hearing in criminal or juvenile cases.	Article 4, Paragraph 1 and Paragraph 3
3	Protect the right of parties and counsel to communicate confidentially during remote hearings.	Article 4, Paragraph 1 and Paragraph 3
4	Provide for a two-year sunset clause in light of concerns about the Act's human-rights safeguards.	Article 13, Paragraph 1

 

	Civil Society Recommendations	Accompanying Resolutions
1	Monitor implementation effectiveness.	Within three months after the epidemic period ends, the Judicial Yuan, together with the Executive Yuan, shall prepare a review report on the implementation of this Act and a study of legislative amendments to improve remote proceedings, and submit them to the Legislative Yuan.
2	Protect litigation rights.	Judicial authorities shall give effect to the principle of direct trial in remote proceedings and ensure that the rights of confrontation, cross-examination, and objection can be effectively exercised, minimizing any impairment of the adversarial examination process.
3	Full audio and video recording.	To ensure the freedom of statements made by parties or litigation participants during remote procedures, as well as the confidentiality of non-public proceedings, personnel such as courts, prosecutors, or police agencies shall make audio or video recordings throughout the entire process and ensure they are not lost, so that the content of the statements matches the written records.
4	Relax peremptory periods.	The Judicial Yuan and the Ministry of Justice shall provide in relevant procedural guidelines that, when considering applications for restoration of status quo ante, authorities should take into account the effects of public-health measures or infection on individuals, with particular attention to circumstances favorable to them.
5	Produce verbatim records.	Once video hearings are in use, adjudicative bodies may, in appropriate cases, pilot the feasibility of preparing verbatim records after the proceedings.

As stated above, the passed provisions of this Act adopted a total of four civil society recommendations and made five accompanying resolutions, demanding that judicial authorities respond to public appeals. To ensure that the implementation of this Act utilizes technology to enhance judicial quality without compromising judicial human rights, this Foundation proposes four statements as follows:

1. Draw on International Experience to Safeguard Judicial Human Rights During the Epidemic

The expansion of remote court hearings by judiciaries in response to the pandemic is a common practice adopted by countries worldwide. The positive or negative impacts of remote hearings on judicial operations are not only major issues for judiciaries globally, but also human rights priorities of concern to international legal organizations.

The International Association of Judges (IAJ) published the "Report on the Functioning of Courts during the COVID-19 Pandemic" on November 2, 2020. This report was led by the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), organizing measures adopted by judicial systems in various countries into seven major themes and 61 recommendations, including: (1) special legislation responding to the pandemic must contain a sunset clause (p. 14); (2) pandemic measures must not derogate from the right to a fair trial (p. 14); and (3) consideration should be given to relaxing peremptory periods in response to the pandemic (p. 48).

The International Commission of Jurists (ICJ) published "Videoconferencing, Courts and COVID-19: Recommendations Based on International Standards" on November 26, 2020. Drawing on international and regional human-rights instruments, it set out recommendations including: (1) videoconferencing should not be imposed without the parties' consent in circumstances where consent is required (p. 15); (2) videoconferencing must safeguard the defendant's right to legal representation (p. 16); and (3) proceedings conducted by videoconference must preserve public access (p. 16).

The recommendations of these international legal organizations show that many issues disputed during the legislative process had already been addressed in international standards and practice, underscoring the limited international perspective reflected in the Judicial Yuan's original draft. The JRF calls on judicial authorities to draw on international experience in responding to the pandemic and fully perform the judiciary's role in protecting human rights.

2. Implementing the New Act Requires More Resources for Frontline Judicial Personnel

The areas most directly affected by this Act are court hearings and the conduct of proceedings. As pandemic conditions change rapidly, frontline judicial personnel must respond in practice. Yet during the Legislative Yuan's special-session negotiations, the Ministry of Justice and Judicial Yuan had not fully consulted frontline judges and prosecutors, a shortcoming repeatedly questioned by opposition parties. Since the Level 3 epidemic alert, practical problems have also emerged that urgently require solutions. For example, the free version of the U-Meeting videoconferencing software designated by the Ministry of Justice requires users to disconnect and restart every 30 minutes; prosecutors connecting from home face insufficient internal network bandwidth, with only 20 connections available; and court clerks and assistant clerks must still report to courts and prosecutors offices to assist with online hearings. Addressing these problems requires greater investment of resources.

Recently, the Taiwan High Prosecutors Office found that pandemic-control measures had caused a surge in pending cases and instructed prosecutors offices to "supervise subordinate colleagues to actively close cases so that a large backlog does not affect the rights and interests of parties after the epidemic eases." But against the backdrop of severe resource shortages, frontline judicial personnel are left with the feeling of being asked to "make the horse run without feeding it." The JRF therefore calls on judicial authorities to face the needs of frontline personnel squarely and invest more resources in the necessary hardware and software. Doing so supports frontline judicial personnel and safeguards parties' procedural rights.

3. Provide Remote Public Access to Reduce the Public's Risk of Infection

To reduce the risk of cluster infections, the Judicial Yuan has permitted remote hearings so that defendants, parties, counsel, and prosecutors need not risk infection by appearing in person. Yet it continues to oppose remote public access on grounds such as the difficulty of preventing covert recording and the need to protect parties' privacy. This not only exposes members of the public who wish to observe proceedings to infection risks, but may also turn court gatherings into a gap in pandemic control.

As courts around the world expanded remote hearings during the pandemic, many also provided remote public access in order to protect observers and avoid crowding in courthouses. The JRF calls on judicial authorities to study overseas experience immediately, establish appropriate safeguards, and allow members of the public and the media in Taiwan to observe proceedings remotely through technological means as soon as possible. This would reduce the risk of courthouse gatherings while promoting judicial transparency and openness.

4. Subject Remote Hearings to Comprehensive Public Oversight

The judiciary's expanded use of remote hearings during the pandemic requires careful evaluation. The Legislative Yuan therefore adopted an accompanying resolution requiring the Judicial Yuan and Executive Yuan, within three months after this Act ceases to apply, to prepare an implementation review and a study of possible legislative amendments for submission to the Legislative Yuan. The JRF calls on legal scholars, practitioners, and the public to monitor implementation jointly, report problems to judicial authorities as they arise, and press for continuous adjustment and improvement. Only by reviewing the experience after the pandemic can Taiwan build a sustainable judicial system.

The JRF invites members of the public to contact our Complaint Center whenever they encounter any of the following situations in proceedings involving prosecutors, police, investigation agencies, or courts at any level:

1. Obstruction of public access to proceedings.
2. Cases deemed unsuitable for remote trial, yet the court still decides to hold a remote hearing.
3. Remote hearing procedures that infringe upon due procedural guarantees or the right to litigation.
4. Other circumstances where rights protection is impacted due to the "Special Act."

This Foundation will spare no effort in assisting with the handling of related complaints and instantly reflecting public opinion.

Attachments

1. Legislative Yuan Concomitant Resolution
2. OSCE/ODIHR: Report on the Functioning of Courts during the COVID-19 Pandemic
3. ICJ: Videoconferencing, Courts and COVID-19-Global Guidance Grounded in International Standards

News Contact

Lu Cheng-Yen, Staff Attorney
02-2523-1178#37
elvin@jrf.org.tw