Tunisian public health workers disinfect a courtroom in the Ariana tribunal near Tunis, to prevent the spread of the coronavirus COVID-19, on March 12, 2020.(Photo by FETHI BELAID/AFP via Getty Images)

Due Process and COVID-19 in the MENA Region

07/24/2020 . By Yasmin Omar and Mai El-Sadany

The spread of COVID-19 had led governments across the Middle East and North Africa (MENA) region to take extraordinary and largely unprecedented preventative and responsive measures. Invoking the exceptional nature of this moment, many countries have declared health-related states of emergency that have affected citizen rights in the process.

These measures bear a critical impact on due process, particularly the rights to counsel, habeas corpus, and a fair trial. Across the region, lawyers have been prohibited from meeting with their clients and individuals have been kept in custody even as pretrial detention hearings have been cancelled or severely delayed. Courts have also substantially reduced their operations. While some countries have taken measures to counteract these issues, serious long-term questions surrounding due process remain.

As countries continue to respond to the pandemic’s spread, it is critical that governments recognize the domestic and international legal obligations that remain incumbent upon them in this moment.

Access to Counsel, Habeas Corpus, and the Courts

When countries in the MENA region suspended prison visits at the onset of the COVID-19 breakout, many of these suspensions also affected the ability of lawyers to meet with their clients in person, denying detainees the ability to consult on legal strategy, to prepare legal defense, and to seek recourse for any detention-related violations. In Egypt, for example, the suspension of prison visits—instituted on March 10—applies to family members and lawyers. Israeli regulations issued on March 15 similarly prohibited Palestinian prisoners from meeting with their attorneys in person, allowing only phone calls between lawyers and clients to take place ahead of scheduled court hearings.

In immediate response to the pandemic, the vast majority of states significantly slowed, and in some rarer cases, entirely halted court operations and hearings. In Iran, for example, pending criminal and civil cases continued to be heard, but new trials were adjourned; cases involving violent crimes, corruption, crimes against public security, and crimes related to COVID-19 were prioritized. Libya ordered the closure of courts for a month and extended for an additional month; the decision, however, did allow “urgent cases”—a phrase that was left undefined—to continue to be heard on a limited basis. Egypt halted court operations, including pretrial detention renewals, for nearly two months, resulting in illegal detention under domestic law and bringing about widespread habeas corpus violations. When courts did resume operations, they reviewed thousands of detentions on paper in the absence of lawyers and while failing to physically bring defendants to court.

All the while, new arbitrary arrests and practices that severely violate due process, including enforced disappearance, have continued region wide, placing strain on court systems—that are either backlogged or entirely stalled—and implicating access to justice for all detainees. These practices have further overcrowded prisons, threatening a severe public health crisis not only for detainees and prison officials, but the population as a whole.

After the initial suspensions and delays, some countries in the region announced that they would transition to remote and virtual court hearings in order to comply with social distancing measures. Bahrain’s criminal courts, for example, began hearing pretrial detention renewals virtually. At the beginning of May, Tunisian authorities passed a decree allowing remote trials using audiovisual communications in times of communicable disease. In the United Arab Emirates, circuits within Abu Dhabi’s criminal court and commercial court systems began to hold remote trials; in Dubai, hearings into urgent matters, criminal cases, and appeals are being held remotely as well.

It is too soon to assess how this new application of remote trials is proceeding from a due process standpoint. Little reporting is available on how widely remote trials are being conducted—specifically, in which types of cases, in which geographical locations, and for what types of defendants—and whether the decision to offer remote trials is being made according to non-discriminatory and transparent guidelines. Additionally, it is not yet clear if trials are set up in a manner conducive to private communication and consultation between lawyers and clients before, during, and after hearings, as is central to the right to counsel. For example, during an in-person trial, lawyers can request that proceedings be halted to consult with their clients; it is unclear whether technology will be leveraged to protect the process in this way and others.

International Standards and Best Practices

On paper, most domestic laws and constitutions in the region protect the right to due process, including access to counsel, habeas corpus, and fair trial. However, some countries have invoked the pandemic to justify due process restrictions in a manner that violates clearly established domestic and international law.

While the International Covenant on Civil and Political Rights (ICCPR) allows countries to adopt exceptional and temporary restrictions on certain rights “in times of public emergency which threatens the life of the nation,” these restrictions must be provided by law and must be necessary, proportional, and non-discriminatory. The Human Rights Committee, which interprets the ICCPR, has said: “The principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency.” Some related rights, including the right to life, prohibition from torture, and the principle of legality in criminal law cannot be restricted, even in a state of emergency.

Taking into account the logistical complexity of balancing between public safety and respecting citizen rights during a pandemic, there are a number of international legal obligations and best practices that MENA governments can adhere to and apply in order to guarantee the right to due process.

Firstly, states must ensure that detained persons continue to enjoy timely and confidential access to legal counsel, even with the cancellation of in person visits. The WHO-OHCHR Interim Guidance on COVID-19 states that the “ability [of detainees] to meet with legal counsel must be maintained, and prison or detention authorities should ensure that lawyers can speak with their client confidentially.” The World Organisation Against Torture (OMCT) adds: “Prison authorities should permit secure video conferencing and other tools to enable lawyers to communicate with their clients as a key alternative to in-person visits…The communication should be free and frequent.” When lawyers and their clients do communicate, these alternative formats must afford them the right to speak confidentially.

Secondly, states cannot extinguish the right to habeas corpus and the right to a fair trial. While the OMCT states that “there can be…limited, timebound and proportionate modifications in the operation of courts, the scheduling of hearings,” it iterates that judicial services are “absolutely necessary, even during a pandemic.” States cannot keep a detained person in custody if their detention is not properly and regularly reviewed. Although the introduction of remote court hearings for detained and non-detained persons is a positive application of technology, states must guarantee that the basic requirements for fair trial guarantees continue to be respected, even in these new contexts.

Whether it is through remote hearings, the scheduling of spaced-out appointments, or the provision of protective gear for limited face-to-face processes, states should ensure that justice bodies, a central pillar of a functioning system of governance, can continue to function even—and especially—in the midst of pandemic.

 

Special thanks to TIMEP’s Legal and Policy Intern Ishanee Chanda for her research support.