(18.12.2020) Lausunto ulkoministeriölle tuomareiden ja juristien riippumattomuutta tarkastelevan erityisraportoijan kyselyyn
Suomen Lakimiesliitto kiittää ulkoministeriötä mahdollisuudesta lausua Yhdistyneiden kansakuntien tuomareiden ja juristien riippumattomuutta tarkastelevan erityisraportoijan kyselyyn. Lakimiesliitto vastaa soveltuvilta osin erityisraportoijan kysymyksiin 1–5 seuraavasti:
1. Please describe the measures adopted in your country to guarantee the proper functioning of the justice system during the COVID-19 pandemic.
As regards the proper functioning of the justice system in Finland both general courts (District Courts, Courts of Appeal and Supreme Court) as well as administrative and special courts (Administrative Courts, Market Court, Labour Court, Insurance Court and Supreme Administrative Court) continued to deliberate court cases uninterrupted throughout the first and second COVID-19 pandemic waves. The courts applied the same procedural legislation e.g. on deadlines, hearing cases, deliberating cases, organising oral hearings, hearing the parties, as during the normal times and no COVID-19 specific legislation concerning the functioning of the courts was adopted. General recommendations given by the health service authorities on the use of face masks and keeping distances were followed whilst working in the courts and participating in deliberations or oral hearings. Pragmatic measures such as strong recommendation to remote working, erecting plastic, transparent partition walls between the client and the court’s personnel at the registry, increasing the number of points where to disinfect hands, recommendations to use facemasks, prohibition to come to the court if suffering from symptoms of COVID-19, distributing via the courts’ network information sheets on COVID-19 pandemic and modus operandi to tackle the disease.
2. Were these measures adopted on the basis of emergency legislation? If so, was the judiciary consulted prior to their adoption, or has the legality or the constitutionality of these measures been subject to judicial review?
Measures applied in the courts were not adopted based on emergency legislation (see answer to question 1).
3. Please indicate the measures that have been adopted in your country on ensure access to justice during the COVID-19 pandemic:
a) Have courts remained opened throughout the different phases of pandemic?
The courts have remained open throughout the different phases of the COVID-19 pandemic.
b) Which criteria have been developed and used to identify urgent cases (e.g. cases on the legality of pre-trial detention or domestic violence)?
No specific, COVID-19 related criteria were adopted to identify urgent cases. E.g. pre-trial detention, childcare and asylum cases are, by definition, to be decided urgently and therefore no COVID-19 specific legislation was needed to prioritise these cases.
c) What measures have been developed and implemented to manage the backlog caused by the COVID-19 pandemic?
At least those courts that continued to function without cancelling court hearings no major backlog was experienced.
d) Has your court system experienced an increase in pandemic-related cases, e.g. complaints against emergency measures or grievances caused by the pandemic (e.g. bankruptcy or family disputes)?
Thus far no mentionable increase in pandemic-related cases have occurred. There have been individual cases were COVID-19 has been mentioned by the party to strengthen other argumentation (e.g. health status of the party being weak for other primary diseases, the risk of catching COVID-19 may prove lethal if extradited to a higher COVID-19 risk country).
4. Please describe the health and safety measures adopted in the court system to ensure participation of all the actors in the justice system (e.g. judges, prosecutors, parties of the proceedings and their lawyers, court officials, law enforcement officials) during the COVIC-19 pandemic.
General measures and recommendations adopted by the national health service authorities applied to court personnel as well. Strong recommendations to remote working, to use face masks, to wash and disinfect hands, to keep distance and not to come to the court if suffering from symptoms resembling COVID-19 symptoms. Bigger courtrooms were used to organise court hearings and deliberations. Recommendation to use face masks in oral hearing by both the judges, prosecutors, parties to the case and their lawyers.
In some instances, the seating arrangements in courtrooms have not made it possible for lawyers and their clients to maintain safe distance from one another, especially if the client has refused to wear a mask. Lawyers have also reported that their safety has not been taken as seriously as that of the judges and prosecutors, since they have not been accommodated in regards of discussions with their clients (e.g., when the client is in custody). Contact with clients and their lawyers have not been restricted as such, but in many cases, it would have required the lawyers to risk their personal safety from a possible contagion.
See also answer to question no. 1.
5. Please provide information on the technological means used to ensure the functioning of the court system during the COVID-19 pandemic (e.g. online submissions to courts or hearings held in video conference):
a) What measures have been adopted to ensure the judicial stakeholders (e.g. judges, court staff, prosecutors) have access to adequate technological means and appropriate training on new procedures (e.g. use of electronic platforms to access documents, electronic case management and video conferencing options)?
At least in individual cases some of the parties were on their demand heard online (videoconferencing) between the court organising the oral hearing and another court in another part of Finland. When videoconferencing premises of another court were used as well as its technological equipment the network connection being that of the judiciary. Since no new technological means were applied, no specific education was carried out.
b) What measures have been developed to facilitate access to justice for disadvantaged groups and individuals who may not own a computer, not have access to internet, or not be tech-savvy enough to participate in online hearings?
Online hearings were organised by using court premises and technological means; parties participating in online conferences were represented by lawyers thus making it easier to adapt oneself to online hearing.
c) Which safeguards have been put in place to ensure that the use of technological means does not adversely affect fair trial and due process standards (e.g. public hearings, adequate time and facilities to communicate with one’s own lawyer, access to interpretation…)?
Thus far online hearings have been organised on demand and consent of the parties to the case represented by their lawyer and having normal access to interpretation, legal aid etc.
Jore Tilander Antero Rytkölä
toiminnanjohtaja hallituksen puheenjohtaja