Marsz Tysiąca Tóg dwa lata później. Suwerenność i praworządność – rola sądów po pandemii COVID-19
The role of the courts in the post-pandemic era
Filipe Marques*
Another year has passed and once again, Iustitia refuses to let the light that started to shine on 11 January 2020 fade. Because of that, let me address my first words to this brave association, a long-standing member of MEDEL, and all of its members, to whom we all owe sincere gratitude and admiration for the example they keep giving us.
I must also not forget Lex Super Omnia, our courageous prosecutors’ association, who, throughout these dark times when the rule of law is breaking down, and despite being under enormous pressure, continues to resist and show the need and importance of having an independent prosecution service for a truly independent judiciary.
To repeat what I mentioned at last year’s event, it is an honour for MEDEL, and for me in particular, to be associated with the commemoration of an event that is a landmark in the history of the judiciary in Europe.
This opening statement must necessarily be short and a mere introduction to the debate that will follow, so let me simply align some thoughts on the topic that brings us together today.
If there is something the pandemic has shown us all, it is that we cannot take for granted even what we feel are the essential pre-conditions for life in society. When we all took to the streets of Warsaw on that January afternoon, no one could imagine that a mere two months later, we would be forced to stay in our homes, limited in our freedom of movement and facing the challenges of working remotely while at same time ensuring that such an important element of society as the justice system remained functional.
However, society as a whole was forced to face unimaginable challenges and come up with solutions to unheard of and unpredictable problems.
Two years have passed, the pandemic is apparently being brought under control and life is slowly coming back to what we may consider the “new normal”. This is the moment to look back and learn from the experience we went through, in order to find solutions for the future. I believe this is what Iustitia wants us to do at this event.
Already during the pandemic, MEDEL was concerned with analysing the main problems faced by the judiciaries in the countries of our member associations. Together with the Portuguese Public Prosecutors’ Association, on 6 May 2020, MEDEL organised a webinar on “Justice and Challenges in Times of Pandemic in Europe”, where we gathered magistrates from various countries and were able to hear the problems and challenges that the pandemic was raising. I will not summarise here the interventions of that webinar. They can be found in the ebook that MEDEL published and is available on our website1. However, from that exchange, some main guidelines of what needs to be done when facing future situations like the one we lived through because of COVID can be drawn up:
– there must be a solid and clear legislative framework of how and under what conditions the judiciary must continue to function in an emergency situation:
• under what conditions may judicial acts be conducted remotely;
• which jurisdictions/cases must always keep going, even in times of extraordinary measures;
– there must be a clear investment in IT and digitalisation in order to allow the judiciary to keep functioning remotely as necessary;
– the law must establish clear, speedy and functional mechanisms that allow citizens to challenge restrictive measures adopted by the government under extraordinary circumstances – a timely judicial review of measures taken by the executive power is absolutely essential in a period of exception.
While one may think that these measures are linked only to the efficiency of the judiciary, we should note that they are also a guarantee of independence. If we do not have clear rules that establish a framework for the functioning of the judiciary in times of exception, it will be up to the executive to define those rules, while at the same time adopting measures that are highly restrictive of fundamental rights and freedoms.
The second part of this conference will be devoted to the situation of the judiciary in Ukraine.
Not yet having recovered from the pandemic, Europe has been faced with a scenario that also seemed unimaginable just several months ago (or, at least, nobody was willing to see the clear signs that already pointed to this outcome). With the war still going on, it is very difficult to predict what its outcome will be, or even in what condition geographically and politically Ukraine will emerge from this tragedy.
What MEDEL has been trying to do is provide assistance to our Ukrainian colleagues who remained in the country, trying to perform their duties under terrible conditions: sending them material aid; helping their families and relatives who managed to escape to other countries; putting them in contact with other NGOs that may help them in the task of collecting and preserving evidence of possible war crimes, in order to bring the perpetrators to justice in the future.
After the war, and if the necessary conditions are met, I believe that the role of NGOs such as MEDEL will be fundamental in the reconstruction of the judiciary – as the Consultative Council of European Judges stressed in its Opinion No 23 (2020) – The role of associations of judges in supporting judicial independence, “the associations of judges at a European level play a significant role in promoting and protecting European values and European legal standards in the field of the rule of law and human rights”. Ukraine will need help in all areas, including those of rebuilding and strengthening its judiciary. All of us European magistrates have the duty to help with the rebuilding of a culture of respect for fundamental rights and the independence of the judiciary in Ukraine, thereby contributing to the deeper integration of Ukraine in Europe.
This was the spirit that led to the “March of the 1000 Robes”, a spirit that we must cherish and carry on into the future.
Thank you very much for your attention, and I wish you all a good conference.
* President of MEDEL – Magistrats Européens pour la Démocratie et les Libertés.
1 https://www.medelnet.eu/index.php/news/60-featured-news/649-e-book-justice-and-challenges-in-times-of-pandemic-in-europe.