A prison warden wearing personal protective equipment keeps watch at Oukacha prison in Casablanca on May 18, 2020. (Photo by FADEL SENNA/AFP via Getty Images)
Commentary

Remote Hearings, Detention, and the Pandemic in MENA

At the beginning of March 2021, nearly one year following the onset of the COVID-19 pandemic, Egyptian President Abdel Fattah El-Sisi directed authorities to expand a program that allows for pretrial detention renewal hearings to occur remotely. A limited pilot program had been in effect since October 2020. 

Egypt is not alone—at the start of the pandemic, courtrooms around the world either significantly decreased their caseloads or halted their proceedings entirely to curb the spread of the virus and to accommodate social distancing measures. Over subsequent weeks and months, judicial systems began to resume their activities to various degrees and some began to grapple with if and how technology could be used to replace at least some in-person proceedings.

Across the Middle East and North Africa (MENA) region, many courtrooms have gone remote. While the use of technology may seem like a progressive solution that responds to the health considerations necessitated by the current moment, these remote programs raise a number of essential questions, particularly for proceedings involving detainees.

How have remote hearings been conducted in MENA so far?

In Egypt, no legal framework exists to govern remote hearings, and the Minister of Justice has dismissed the need to introduce a specific law or amendment. Last fall, his ministry introduced remote hearings for pretrial detention renewals; as mentioned earlier, he has since been directed to expand the program. According to an Egyptian lawyer who spoke to TIMEP, remote hearings are currently largely occurring only in the pretrial phase and when detention is being reviewed by the courts, rather than by the Public Prosecution. The consent of the defendant is not being solicited before authorities decide to hold a remote hearing.

Under the current system, detainees are brought by authorities to designated halls within the prison where, in the presence of prison authorities, they are contacted by judges and their lawyers from a courtroom via video conference (closed circuit television). Lawyers and activists say this system does not allow defendants to securely and privately communicate with their lawyers. They also warn that the physical presence of the accused in the prison during hearings undermines their ability to freely file reports with judges concerning ill-treatment, medical neglect, and torture in prison. 

Speaking to TIMEP, the lawyer also pointed out that remote hearings take place in a broader context in which severe violations of due process regularly occur during in-person hearings. Such violations are only likely to be exacerbated in virtual settings. While conducting remote hearings may prevent the crowding of detainees during transfers to courts, lawyers say that they deprive detainees of the regular connectivity with the outside world that they would otherwise access when traveling to their renewal hearings and seeing lawyers and family members—essential for all in custody, but particularly those denied the ability to exercise and/or held in solitary confinement. The lawyer speaking to TIMEP said that significant amendments and changes need to be made to regulate remote hearings in Egypt and ensure that technology is not abused to further violations. 

In Morocco, the Supreme Judicial Council began conducting remote hearings following a joint decision by it, the Ministry of Justice, and the Public Prosecution to halt the transfer of detainees to courts in light of the pandemic. It has been reported that over 12,248 virtual hearings took place between April and December 2020. Like in Egypt, these hearings are conducted with the accused attending from a designated hall within their place of detention via videoconferencing technology, while the prosecutor, judge, and lawyer all attend from the courtroom. Unlike Egypt, however, detainees in Morocco reportedly have the right to refuse to be tried remotely.

Moroccan lawyer Miloud Kandil, speaking to TIMEP, cited technical difficulties, including the challenge of conferencing in multiple parties (i.e., two defendants at two different prisons); judges have reportedly conducted separate calls with each party, and have had to hang up to go back and forth between the parties, extending the proceedings and limiting the ability of defendants to engage actively in hearings. Kandil also alluded to a number of other challenges including poor internet connection, technical issues with cameras and microphones that take significant time to resolve, and background noise from prisons. Although lawyers are permitted to visit their clients before and after virtual proceedings, activists have raised concerns about the ability of the accused to communicate confidentially with their counsel during the remote hearing itself. Reflecting on immediate fixes to improve remote hearings, Kandil emphasized the importance of more advanced technology and more present tech support, as well as investment into prison halls where hearings take place. 

In Lebanon, remote hearings were introduced through a decree issued by the Supreme Judicial Council in light of the health emergency posed by COVID-19. However, the decree’s vague text has led to  different implementations based on where defendants are being held. Remote hearings are still relatively limited but have largely occurred in cases involving urgent matters and investigative and pretrial hearings. Lebanese lawyers have reported that detainees typically are transferred from their holding cells to rooms inside police stations and prisons where they are being held to attend virtual hearings; the investigative judge, lawyer, and state official all attend from the investigative judge’s office. 

The hearing is meant to take place through a two-way video call. However, the head of the Legal Department at the Lebanese Center for Human Rights (CLDH), speaking to TIMEP, reported numerous violations, including hearings conducted over only audio due to weak internet connection at police stations and jails. At times, the remote hearings that do occur over video are conducted on mobile phones held by judges during proceedings, limiting the ability of the lawyer to consult with their client and to see anyone else who may be in the room with them, such as prison staff who could potentially pressure defendants during hearings. Judges and police officers have previously had to use their own mobile phones to conduct these hearings, and lawyers are frequently left waiting for hours for the internet connection to resume to host a single hearing, creating significant delays in the judicial process. 

The head of the Legal Department at CLDH also said that it was particularly difficult to envision proper remote hearings due to the fact that defendants remain in prison (where they are unlikely to feel free and could be in the same room as prison staff), the inability of the defendant to communicate confidentially with his or her lawyer, the limited technological infrastructure and know-how for proper implementation, and the fact that the necessary case files have not been digitized. She also stated that lawyers were not consulted before Lebanese authorities decided to begin holding remote hearings.

Jordan held its first virtual trial in July 2019 before the onset of COVID-19; as of October 2020, the country had reportedly conducted more than 7,000 trials, including ones before the State Security Court. Authorities have conducted these trials based on a 2019 decision by the Minister of Justice implementing Article 158 of the Code of Criminal Procedures (Law No. 9 of 1961), which allows for the use of “modern technologies,” in investigation and trial procedures. The law does not require the consent of the detained to initiate remote procedures. 

According to Jordanian lawyer Mohammed Qutaishat, who spoke to TIMEP, the accused attends the virtual hearing from a designated room equipped with a camera within their place of detention. Hearings are conducted over video, with judges in the courtroom and lawyers in their offices. Lawyers in Jordan report difficulty seeing the full rooms from where defendants are videoconferencing and are unable to assess if there are others in the rooms with defendants. Moreover, the judge controls who speaks via the mute button. Qutaishat also raised alarm over the confidentiality and privacy of virtual data and documents.

Government officials have commended the transition to remote trials for “lifting a financial burden on the state treasury” and for making it so that authorities would not have to transfer as many detainees to the courts. In the eyes of lawyers however, the right to a fair trial is at stake. Jordanian courts, prisons, and judges’ offices lack the technological infrastructure necessary to conduct remote hearings in a way that ensures fair trial guarantees. In Qutaishat’s assessment, public officials and lawyers do not possess the technical know-how to conduct these hearings and poor internet connection remains a frequently-cited issue. Lawyers in Jordan even staged a strike to protest the Minister of Justice’s decision authorizing remote proceedings; Qutaishat suggested that the court should have, instead of resorting to remote trials, delayed non-urgent trials and held urgent trials in-person in the safest manner possible. Instead of growing the remote hearing program, the state should have released pretrial detainees in non-violent offenses to decrease the burden on courts during the pandemic, he said. 

What should remote hearings look like?

The examples above from Egypt, Morocco, Lebanon, and Jordan raise a series of questions at the heart of remote hearings and highlight a number of underlying concerns that must be taken into account as these virtual programs continue to be implemented and expanded. 

Is the hearing taking place with the informed consent of the defendant? If a defendant attends the hearing while in jail, will they feel sufficiently free when prison officials are present in the room or nearby? Will defendants be able to freely raise violations faced in prison to the judge while still physically inside the detention facility? If lawyers are not in the same room as their clients, how are they able to consult before, during, and after the hearing confidentially? To what degree is the defendant able to actively participate in hearings where they cannot see all parties and witnesses? Is the internet connection reliable enough to ensure that the client and his or her lawyer can be properly heard and make a proper defense? Are there sufficient resources in place to implement these programs fairly and transparently?

At the heart of the answers to these questions is how a state chooses to balance its response to the pandemic, largely intended to protect the right to life and the right to health, with other rights—including the right to be free from arbitrary arrest and detention (Article 9 of the International Covenant on Civil and Political Rights) and the right to a fair trial (Article 14 of the ICCPR). Although international best practices around remote hearings are still being shaped and articulated, international law has previously weighed in on this question of balance. 

It is not only the prerogative of the state, but also its obligation, to implement measures during a public health emergency in order to protect the populations’ rights to life and health. While these measures may limit or derogate from certain human rights, the measures must also meet strict criteria of legality, non-discrimination, necessity, and proportionality. The UN Human Rights Committee General Comment No. 29 on States of Emergency has specifically stated that the “fundamental requirements” of a fair trial must “be respected during a state of emergency,” including the presumption of innocence; it cites prior comments which have said that states “may not depart from the requirement of effective judicial review of detention” and that generally, the right to habeas corpus should not be limited in situations of emergency.

The International Commission of Jurists (ICJ) has produced an instructive guidance which interprets the relevant international law and proposes practical recommendations for courts during the pandemic depending on the type of trial. Among other takeaways, it highlights that hearings that would normally require the physical presence of the defendant cannot take place virtually without “freely given and fully informed consent” from the accused. Specific to detention reviews, the guidance emphasizes the importance that physical presence before a judge can play, including in breaking the sense of “near-absolute control” in a prison; creating an opportunity for the judge to observe signs of abuse; and giving the defendant the chance to report torture—all of which are essential to Article 9 of the ICCPR.

When technology is used as a replacement for in-person hearings, the guidance emphasizes that the accused must have private access to lawyers before, during, and after hearings, which may require the use of private virtual rooms or other technology. Additionally, the accused must be able to effectively participate in the session, including seeing and responding to witnesses and being able to inspect and access evidence. Hearings must be brought to a halt if there are technological difficulties. Highlighting the presumption of innocence, the ICJ also states that defendants should not attend hearings in prison attire. 

Ultimately, while the temporary reliance on remote hearings in the MENA region may seem like a practical response—and in some cases, a necessary one—the introduction of these measures has been haphazard. The transition to remote hearings, particularly those involving defendants in custody, has largely taken place without consulting the legal community, without a realistic assessment of the limited technology and resources in place for implementation, and without properly centering the rights of defendants. In the immediate future, these programs are likely to continue; engaging to ensure that they are re-worked to respect due process, fair trial, and detention rights is of the utmost importance. Post-pandemic, the question of whether these remote hearings can be conducted without facilitating violations or exacerbating existing ones—and whether they should be allowed to continue—remains to be asked and will be an ongoing topic of debate among the legal community.