ACT N° 53-2020: FUNCTIONING OF THE JUDICIAL POWER DURING THE NATIONAL HEALTH EMERGENCY

As is already publicly known, Covid-19 infections have, as expected, been increasing. This has not only affected the operation of economic activity, but also the operation of public bodies responsible for the application and administration of justice, putting at risk the protection of legal and constitutional guarantees of individuals.

By Victor Riadi Id

Therefore, a new Order has been issued by our highest court of law, in order to regularize this situation, so that the operation of the different organizations and workers that comprise the judicial system can be organized, without affecting access to the guarantees and rights of people due to the spread of the Coronavirus in our country.

The most important provisions of the Order already cited are indicated below and, together with this, the different scenarios on which the courts of our country may use special powers are analyzed, in order to administer justice, but without putting at risk people’s health and life.

General Content of the Agreed Order aimed in Act Nº 53-2020

This Act contains 3 Titles and 31 articles, which deal with prevention, health and other special measures, which must be adopted by the courts of law during the duration of the state of sanitary emergency that affects our country.

The first paragraph begins by citing the guiding principles that act as behavioral guidelines regarding the measures to be adopted by the courts and their dependents, in order to prevent the greatest number of possible infections by Coronavirus. Among these principles we find the most important: /i/ the Protection of Life and Public Health, /ii/ the Access to Justice, Transparency and continuity of the Judicial Service, and /iii/ the principle of the Protection of the rights of people in vulnerable situations.

The first principle quoted states that the courts of the Republic -in the measures they adopt- must always ensure the correct prevention and health measures, applying to that effect all the necessary conditions to prevent infections, such as: /i/ social distancing , /ii/ videoconference hearings, except for expressly stated exceptions, /iii/ among others.

Secondly, the principle of Access to Justice, Transparency and continuity of the Judicial Service, deals with the need for the courts to continue in the exercise of their duties, always ensuring the protection of their dependents and those persons of justice, having to establish various platforms (if possible digital), so that all those who are violated in the exercise of their rights do not remain defenseless.

Finally, the third principle is fundamentally aimed at giving priority to the protection of health and the exercise of their rights to those who are in a delicate state of health or are more inclined to becoming infected with Coronavirus.

The second paragraph is intended to protect the health of officials of justice, and the courts must establish remote working mechanisms by telework, leaving only in person the operation of the work of those officials who are essential for the correct administration of justice, having to comply at all times with sanitary and preventive measures that ensure their safety. Likewise, within this paragraph it is emphasized that said officials who must appear in person to carry out their duties may not be those persons considered as potential risk factors, and they must be replaced or suspended from their duties for the duration of the health contingency that currently affects our country.

General provisions applicable to judicial procedures

It provides that only those hearings that, according to Law N°21.226, are strictly necessary because they are urgent, may be carried out in person, without prejudice to the special power that Article Nineteen of the present Agreed Order grants to the Most Excellent Court Supreme.

Likewise, it is established in the twelfth article of this Agreed Order, that the courts must promote that, in the first judicial proceedings, the parties establish special and expedited forms of contact, such as cell phone or email for the purposes of notifications and communications.

Proceedings and court proceedings

In its articles fourteen to article sixteen, the Agreed Order of the Supreme Court establishes that all those hearings that do not need to be conducted in person – because they do not understand grounds for urgency – can be held remotely.

In the same sense, it is established that, in case of alleging hindrance for the hearings that must be held due to the causes of articles 4, 5 and 9 of Law N° 21.226, it will be ensured that this is due to circumstances related to the Coronavirus in line with the principle of Good Faith and with strict consideration to people who are in a state of vulnerability.

Programming and Conducting of Hearings

It is established that all hearings that are not considered strictly urgent according to current legal regulations, may be rescheduled or suspended, without prejudice to the possibility that they may be conducted remotely.

On the other hand, regarding those hearings that must be carried out in person throughout the country, all the necessary mechanisms must be implemented to safeguard the health of the people who appear at them, especially for those who are in a state of vulnerability, regarding which their appearance via remote control will be preferred, except the imperative need that it be carried out in person.

Finally, regarding the announcements in the respective Courts, this paragraph indicates that they may be made through electronic means.

Amendment of the suspension regime of hearings

It is granted to the Supreme Court the power to be able to modify at any time the suspension regime decreed in the present Agreed Order, either by extending it, deepening it, or lifting it with respect to certain jurisdictions.

Administrative, conservative and non-jurisdictional powers

It establishes that all administrative functions that do not have a direct and strict relationship with the correct administration of justice, must be reduced to the minimum possible, and digital platforms that allow quick, easy and efficient access for those who require them must be implemented to carry them out of the service that these functions offer.

Other provisions

Finally, in Title III of the Agreed Order in question, from article twenty-eight to article thirty-one, the measures contained therein are extended to the other auxiliaries of the administration of justice, such as conservators, notaries, archivists and receivers, for this purpose, coordinating the procedures with the competent organizations in order to privilege teleworking and the delivery of remote services, but always trying to minimize the risks to fundamental rights that the current health situation implies.

Conclusion

Throughout this article, we conclude that given the health contingency that currently affects the country, it is necessary to make our system of application and administration of justice more flexible, but without thereby ceasing to put judicial procedures into operation, since precisely they allow the protection of the rights of the people.

In this way, although we believe that there are still some edges that must be covered within the proper functioning of the courts of justice, we find that this Agreed Order undoubtedly constitutes an advance that increasingly brings us closer to being able to have greater protection of our health, without affecting the correct and efficient administration of justice.

At Palma Edwards Veszpremy we are constantly attentive to the progress of the law in this matter, and we closely follow the legal realities that oblige us to modify the operation of our courts of justice, in order to be prepared and informed in the best possible way to safeguard the actions and legal guarantees of our clients.