Justice on Screen: research report on using remote communication in the criminal justice system

The Hungarian Helsinki Committee has carried out an exploratory study on the practice of remote hearings in Hungary with a special focus on legislative changes introduced during the COVID-19 pandemic. Our main research question was how the introduction of remote hearings affected criminal procedural rights. The purpose of examining this was to uncover risks and benefits related to the sudden expansion of hearings conducted in criminal proceedings without the physical presence of defendants, as well as to assess possible mitigating solutions to harmful practices. This research report, Justice on Screen – using remote communication in the criminal justice system presents both HHC’s analysis and assessment of Hungarian legislation and the outcome of its empirical research on remote hearings, highlighting issues of implementation. See Justice on Screen’s executive summary and HHC’s recommendations here in English and our full research report here in Hungarian.

Summary of HHC’s findings

From the fair trial rights perspective, our legal analysis uncovers some concerning elements of the new provisions allowing for:

• the wider use of voice-only devices at remote hearings,
• authorities not being obliged to obtain the defendant’s consent for a remote hearing,
• reducing the scope of remedies relating to remote hearings and to the defendant’s request for personal presence at hearings.

The empirical part of our research shows that:

• While the court system has recognised the need to increase its capacity for remote hearings, no new endpoints have been established in the penitentiary system to accommodate these. Therefore a number of penitentiary institutions exist with insufficient capacity for conducting remote hearings;
• Similarly, there has been no capacity development for remote hearings in police jails;
• Serious deficiencies in the available infrastructure has led to absurd situations. For example, one of HHC’s clients was transferred from a penitentiary where he was being held, to a facility 430 kilometres away to participate in a remote hearing. For the sake of this “remote hearing”, he was also quarantined following both transfers. It is the duty of the State to create the infrastructural conditions, in which such incidents do not occur.
• The majority of professionals who participated in our research expressed concern about the violation of some criminal procedural guarantees, and several of them expressed doubts about whether the educational purpose of prison sentences can materialise when the sentence is imposed via screen.
• The pandemic and the impossibility of maintaining personal contacts have placed both prisoners and professionals, especially probation officers in a difficult situation. For example, probation officers highlighted how quickly it became apparent that it is impossible to do their job over the phone:
  • to conduct an assessment of the personal circumstances of convicts,
  • to provide the necessary control that comes with being under probation supervision,
  • and more importantly, to support them over the phone in the required quality.

HHC’s recommendations:

1. Revoke from effect the most concerning aspects of new criminal procedural provisions introduced during the COVID-19 having a negative effect on defendants’ procedural rights and get back to at least the legislation prior to the pandemic.
2. Amend – or where appropriate repeal – any provisions in the criminal procedure code prior to pandemic that was restricting defendants’ rights, with a special focus on the exercise of the right to a fair trial.
3. Restore the practice of holding trials in person after the pandemic is over.
4. Reduce prison population on a systemic level by prioritising the use of alternative sanctions. This kind of reduction will reduce the need for required infrastructure to ensure the participation of detainees in criminal proceedings.
5. During the pandemic, penitentiary institutions and the National Police Headquarters should take steps to procure equipment required to conduct remote hearings.
6. In general, the criminal justice system should have sufficient means to avoid the risk of prolonged proceedings, and to ensure that the defendant is able to participate in a remote hearing instead of requiring their transportation hundreds of kilometres from one penitentiary institution to another.
7. Attention must be paid to ensure that confidential communication between the defendant and their defence counsel can take place both in a face-to-face and in a remote setting.
8. Authorities concerned shall take steps to make remote hearings publicly available to ensure that the right to a public hearing is not violated in a remote setting.
9. Probation officers should work in-person even during the pandemic under strict health safeguards. In particular, contact between the probation officers working in penitentiaries and their detained clients should remain personal. Rooms should be set up at penitentiary institutions that are suitable for meetings between probation officers and their clients, minimising the risk of transferring the virus, such as security booths that are already in use by penitentiary institutions.

This research was carried out as part of an international project coordinated by Fair Trials, which examined the effect of COVID-19 on different aspects of justice systems around the world.