Philipp Eschenhagen, Max Jürgens*
A. ABSTRACT
The SARS-CoV-2 pandemic challenges the human right to a public hearing and calls for a fresh discussion on its scope and limits. The contagious nature of the virus impedes physical courtroom access for spectators, forcing jurisdictions to find alternatives in complying with their human rights obligations. This article explores various remedies employed by different jurisdictions in response to the pandemic. It illustrates how diverging notions of ‘public’ hearings result in different approaches to the implementation of the corresponding human right.
B. INTRODUCTION
‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’
Article 10 of the Universal Declaration of Human Rights (UDHR)1 establishes the right to a public trial as a fundamental human right. Later, international conventions and covenants incorporated the right to a public trial in civil and criminal cases into their systems of human rights protection: According to Article 14 of the International Covenant on Civil and Political Rights (ICCPR)2 all persons ‘shall be entitled to a fair and public hearing.’ Similarly, the European Convention on Human Rights (ECHR)3 guarantees ‘a fair and public hearing within a reasonable time’ in Article 6.Article 8(5) of the American Convention on Human Rights (ACHR)4 stipulates that criminal proceedings ‘shall be public, except insofar as may be necessary to protect the interests of justice.’
The right to public hearings finds implementation in the majority of domestic jurisdictions. The 6th Amendment to the United States Constitution stipulates the right to a “speedy and public trial” of those accused of having committed a crime.5 Similarly, national legislation in Germany6, France7 and the United Kingdom (UK)8 generally provide for public hearings in civil and criminal proceedings.
However, in times of a pandemic, public hearings in civil and criminal court proceedings face a variety of challenges. Courts all around the world face the difficult task of protecting the health of parties involved as well as the interested public, while at the same time guaranteeing a public trial. The codes of civil and criminal procedure in most countries are designed to regulate court proceedings in non-pandemic times, and seldomly have provisions in place that insure public participation during a nationwide health crisis and a wide-ranging public lockdown.
Therefore, during times of a pandemic, the human right to a public hearing receives new scrutiny by many jurisdictions, since physical access of the public to a courtroom impedes social distancing measures aimed at containing the spread of a lethal virus. Remedies to alleviate health risks for concerned parties and the public within a courtroom are diverse and differ from jurisdiction to jurisdiction – and sometimes even within jurisdictions. While some jurisdictions use new technology to construct “virtual courtrooms” which allow remote participation of the public, others simply discourage interested persons from attending hearings or forbid attendance altogether.
The current SARS-CoV-2 pandemic has severe implications for physical courtroom access of the public, which raises issues regarding the scope of the right to public hearings as enshrined in human rights law. In particular, the pandemic endangers the lawful implementation of the right to public hearings in domestic jurisdictions. The virus makes governments and courts question the entire notion and forces a discussion on the substance of “public” in “public hearing” according to human rights law.
Current human rights law does not offer stringent solutions for ensuring public hearings during pandemic times. Human rights treaties offer exceptions to the right to public hearings,9 however, their scope and application in light of exceptional situations such as the SARS-CoV-2 pandemic become blurred.10 But while theory may develop over time, practice had to react swiftly. Domestic jurisdictions reacted differently to the pandemic, exemplifying their diverging interpretations of the human right to a public trial. In fact, these diverging reactions can be traced back to different general notions underlying the principle of public hearings.
Consequently, this article first explores these different notions underlying the principle of public hearings (C.) before examining the corresponding practical remedies sought by some jurisdictions as a response to the pandemic (D.). Lastly,
* Max Jürgens ist Promotionsstudent an der Goethe-Universität Frankfurt und Rechtsanwalt in Hamburg. Philipp Eschenhagen ist Promotionsstudent an der Christian-Albrechts-Universität zu Kiel und wissenschaftlicher Mitarbeiter am Institut für Klimaschutz, Energie und Mobilität in Berlin.
1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III).
2 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
3 European Convention for the Protection of Human Rights and Fundamental Freedoms.
4 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123.
5 US Constitution amendment VI; see also Richmond Newspapers, Inc. v Virginia (1980) 448 US 555.
6 Gerichtsverfassungsgesetz 1975, s 169(1).
7 Code de procédure civil 1975, Art 22; Code de procédure pénale 1958, Art 306.
8 For England and Wales Civil Procedure Rules 1998, pt 39.2; see also Human Rights Act 1998, Art 1, making it unlawful for a public authority to act in a way incompatible with rights awarded by the ECHR.
9 cfECHR, Art 6, 15.
10 cf K Dzehtsiarou, ‘COVID-19 and the European Convention on Human Rights’ (Strasbourg Observers, 27 March 2020);cf also below D.
the article will conclude that these practical remedies stem from different general notions underlying public hearings and will shape the future interpretation of the human right to a public hearing (E.).
C. THE PRINCIPLE OF PUBLIC HEARINGS
Traditionally, most jurisdictions implement the human right to a public hearing by allowing physical access to courtrooms. Currently, however, many jurisdictions deviate from this practice by employing a number of alternative measures. These jurisdictions vary considerably in their approaches to the principle of public hearings (see below D.). Yet, while the practical measures differ, they are based on consistent theoretical foundations.
Broadly, two lines of thought can be identified as the theoretical basis for the principle of public hearings.11 On the one hand, the principle is closely tied to the fundamental notion of publicity. The notion of publicity stems from enlightenment thought.12 Kant wrote: „ All actions that affect the rights of other human beings, the maxims of which are incompatible with publicity, are unjust.”13 Today, the notion has entered most legal cultures, which self-identify as democratic and rule-of-law-based. In democratic rule, the people as sovereign must be in a position to form a public opinion, which guides government’s actions.14 Government’s actions must therefore be transparent to the public. Hence, transparency forms one of the cornerstones of the notion of publicity.15 Furthermore, as a matter of the rule-of-law publicity also ensures that governmental action is legitimate.16 As such, the notion of publicity underlying public hearings warrants lawful governmental conduct, fair procedure, and the respect for human rights.
On the other hand, public hearings may pursue entirely different ends than envisioned by the notion of publicity. While publicity is a means for control of governmental action, governmental action may itself seek to be perceived in public. Where it does, the principle of public hearings may deviate from the enlightenment notion of publicity. Courts may seek perception of their trials in public not merely to conform to the notion of publicity, but because the trial pursues sociological and political ends beyond the enforcement of legal rules.17 In open court, spectators may witness the punishment of perpetrators, law enforcement and assertion of individual rights. Having seen justice in action, public trust in judicial process can be assured. To this extent, trials may function as show-trials – which need not necessarily be intimidating as the term suggests, if understood merely as indicating these trials’ orientation towards public perception.18 This function follows the notion that all social practices are signifying practices and hence that a trial may be instrumental in expressing certain messages.19 It can therefore be termed the ‘expressive’ function of court hearings.20 For the principle of public hearings this function signifies that the trial depends on its public perception and therefore seeks it.
It remains uncertain whether these two notions underlying the principle of public hearings are compatible with each other. One could consider the expressive function of court hearings irrelevant to the individual human right to a public trial. In fact, the German Constitutional Court (Bundesverfassungsgericht) held that trials are not explicitly directed at public perception, as this would contradict the rule-of-law. The Court specifically condemns the entire notion of show-trials.21 In other legal regimes such as international criminal law, however, trials are considered to convey a message to communities after mass atrocity.22 To this end, the International Criminal Court (ICC) organizes live screenings of its proceedings in affected communities.23 Similarly, in some instances court proceedings in the United States (US) can be followed via live stream.24 And yet, the ICC as well as the US would self-define as rule-of-law based regimes. In fact, the two lines of thought can be present within one legal system. The notion of publicity will be considered relevant to all kinds of proceedings in rule-of-law based systems. The notion of expressivism, however, may be predominant (but not exclusive) in criminal trials, where public perception may be of increased importance.
One might also perceive these notions as mutually reinforcing each other. Where a culture of publicity prevails, courts send out a particular message, the message of publicity. This message simultaneously satisfies the expressive function of trials.
Human rights law does not explicitly adhere to one notion over the other. While the notion of publicity is certainly tied closely to the political theory of human rights law,
11 The following line of argument is inspired by the Chapter ‘Gericht und Tribunal’ in C Vismann, Medien der Rechtsprechung (Fischer Verlag 2011).
12 cf James Clinger, ‘The Kantian Publicity Principle and the Transparency Presumption in Public Affairs: When Private Citizens’ Participation Becomes Public Knowledge’ (2016) 19(4) Public Integrity 394.
13 Immanuel Kant, ‘Toward Perpetual Peace’ P Kleingeld, Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Yale University Press 2006) 104.
14 cf eg BVerfG (1998) 2 BvR 1877/97 para 80.
15 Clinger (n 12) 395.
16 F Meinel, ‘Öffentlichkeit als Verfassungsprinzip und die Möglichkeit von Onlinewahlen’ (2004) 37(4) Kritische Justiz 413, 417.
17 J Feinberg, ‘The Expressive Function of Punishment’ in J Feinberg, Doing and Deserving (Princeton University Press) 95.
18 However, critical voices are manifold, cf only M Koskenniemi, ‘Between Impunity and Show-Trials’ (2002) 6 MPYUNL 1 with regards to international criminal trials.
19 David Garland writes: ‘[E]ven the most mundane form of conduct in the social world is also a possible source of expression, of symbolization, and of meaningful communication – every action is also a gesture’, D Garland, Punishment and Modern Society: A Study in Social Theory (Clarendon Press 1991) 255.
20 For the use of this term cf CR Sunstein, ‘On the Expressive Function of Law’ (1996) 63 University of Chicago Law Review 591, 597; B Sander, ‘The expressive turn of international criminal justice: A field in search of meaning’ (2019) 32(4) Leiden Journal of International Law 851.
21 BVerfG (2001) 1 BvR 2623/95.
22 M Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers 1997).
23 cf the ICC’s website for live broadcasting and its Youtube channel; see also L Owor Ogora, ‘Ugandan Delegation in The Hague as Thousands of People Attend Live Screening Sessions Across Northern Uganda’ (International Justice Monitor 19 September 2018) with an account of ICC live screenings in Uganda.
24 Famously, The People of the State of California v OJ Simpson (1995) was televised; today, a number of US courts broadcast hearings on the internet via virtual livestream, eg Ninth Judicial Circuit Court of Florida, ‘Initial Appearances – Live’.
the human right to a public trial does not disregard the expressive function of trials. Accordingly, the European Court of Human Rights (ECHR) argues that the human right to a public trial “protects litigants against the secret administration of justice with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained.”25 The Court therefore refers to the notion of publicity as well as the expressive function of trials in interpreting the human right to a public trial.
D. PUBLIC HEARINGS IN TIMES OF A
PANDEMIC
Independent of whether these two lines of thought are compatible or not, during these pandemic times they often shape the arguments for or against certain measures enabling public hearings. They do so in a discreet manner, often unnoticed, since they are deeply embedded within legal cultures.
The following overview exemplifies how different legal systems adhere to these understandings of public hearings even or particularly in a pandemic environment. While some states appear to struggle with their restrictive understanding of public hearings during the SARS-CoV-2 pandemic, others seem to expand on alternative measures originating from pre-pandemic times.
I. Cancellation and postponement of hearings
In the immediate aftermath of first shut down measures, many courts preliminarily decided to cancel or postpone hearings.26 In the UK, most courts chose to postpone non-essential hearings and to only cover urgent work; ongoing jury trials were continued at first, while new jury trials were not to take place.27In Germany, most judges28 have decided to postpone public hearings either indefinitely or to a time, where a lifting of restrictions is expected.29
However, in unison with the requirement of a public trial, most statutes also stipulate the necessity for a speedy trial, especially in criminal cases. Consequently, certain civil and criminal proceedings cannot be preliminarily canceled or rescheduled. Especially in criminal cases involving defendants in pre-trial custody, the defendant has a right to a regular reassessment of his imprisonment, even in times of a pandemic.30 Other criminal cases must take place within a certain time frame before the statute of limitations on the alleged crime runs out31 or the case needs to be heard anew.32 Additionally, certain criminal trials cannot be delayed indefinitely if the defendant is in pre-trial custody – an undue delay would lead to the release of the defendant from custody, irrespective of the alleged crime.33
II. Exclusion of the public
Courts could – in theory – declare a hearing not open to the public in order to prevent the spread of the virus.34 Human rights treaties regularly provide for an exception allowing for derogations from the right to a public trial under specific circumstances.35 Such an exclusion of the public could either be achieved by holding a remote hearing without making the live feed available to the public, or by holding a physical courtroom session while barring the public from attendance.
For cases which cannot be postponed, courts in Germany are discussing to introduce a provision that temporarily excludes the public from attendance during the pandemic.36 In the UK, a hearing must be held in private, if and to the extent that the court considers this to be necessary to secure the proper administration of justice.37 According to the judiciary, the current pandemic may qualify as reason for a private hearing.38
A temporary exclusion of the public for health reasons could be deemed legal with regards to human rights law, insofar as the exclusion strictly adheres to the principle of necessity.39 In this regard, necessity regularly includes the stipulation of an aim on which an exclusion is based, the pursuit of that aim by means of an exclusion of the public, as well as an appropriate balance between the grounds for exclusion of the public and the interest in a public hearing.40 While the protection of life may be considered a viable aim for excluding the public and the exclusion an appropriate way
25 Riepan v Austria (2000) para 27.
26 See eg the notification on the corona virus by the German District Court of Osnabrück: Landgericht Osnabrück, ‘Weitere Informationen zum Umgang mit dem neuartigen Coronavirus am Landgericht Osnabrück’ (Niedersachen. Klar., 20 March 2020).
27 Her Majesty’s Courts and Tribunals Service, ‘HMCTS weekly operational summary on courts and tribunals during the coronavirus (COVID-19) outbreak’ (GOV.UK, 24 April 2020).
28 In Germany the cancellation or rescheduling of hearings is generally auspice of the judge or judges conducting the trial. The autonomy and independence of judges in Germany – a strict principle of the rule of law enshrined in Basic Law 1949, Art 97(1) – forbids state or federal government to implement rules on how judges are to schedule their hearings, even in times of a pandemic.
29 However, a uniform approach – even within single courts – was not possible, A Kaufmann, ‘Die Gerichte schalten auf Notbetrieb’ (Legal Tribune Online, 17 March 2020).
30 For example: Strafprozessordnung 1987, s 117, in Germany.
31 The Loveparade Case currently heard by the District Court of Duisburg in Germany was recently terminated because delays caused by the coronavirus would exceed the statute of limitations, Landgericht Duisburg (2020) Az 36 KLs 10/17.
32 For example: Strafprozessordnung 1987, s 229, in Germany and the current criminal case against concentration camp warden Bruno D., Landgericht Hamburg, ‘Terminhinweis im Verfahren gegen 93-jährigen früheren SS-Wachmann’ (hamburg.de, 21 April 2020).
33 For example BVerfG (2018) 2 BvR 819/18, paras 28-30 in Germany; Code de procedure pénale 1958, Art 145-1 in France.
34 For example Gerichtsverfassungsgesetz 1975, s 172(1a) in Germany.
35 ECHR, Art 6: ‘the press and public may be excluded … in the interests of morals, public order or national security … or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’; the ICCPR, Art 14(1), employs a very similar wording; the ACHR, Art 8(5), also refers to the ‘interests of justice.’
36 A respective draft amendment to the Arbeitsgerichtsgesetz 1979, s 46(3) was considered by the German Ministry of Justice, B Windau, ‘Neue Initiative: Arbeitsgerichte als „Online-Courts“?’ (Expertenforum Arbeitsrecht, 31 March 2020), however, the constitutionality of even a temporary exclusion of the public is dubious, P Eschenhagen, ‘Öffentlichkeit in Online-Gerichtsverhandlungen’ (Verfassungsblog, 26 April 2020).
37 Civil Procedure Rules 1998, p 39.2(3)(g).
38 Judiciary of England and Wales, ‘Civil justice in England and Wales protocol regarding remote hearings’ (26 March 2020).
39 cfECHR, Art 6, which allows for such an exception as long as the principle of proportionality finds consideration.
40 C Grabenwarter, European Convention on Human Rights Commentary (Beck Verlag 2014).
of securing that aim, striking a balance between the grounds for exclusion and the interest in a public hearing will require consideration for less drastic measures: Technological solutions such as a public audiovisual transmission of a trial may be favorable to the extent that they uphold (physical or remote) public access to hearings while not infringing upon other rights, e.g. the right to a speedy trial or the right to life and health. If a court possesses these technological capabilities, the claim of necessity might be unconvincing.
Extreme examples of public exclusion during a remotely held trial are cases in Singapore and Nigeria, in which defendants were reportedly sentenced to death by the respective courts via Zoom video conferencing.41 The sentencing judgments were communicated to the defendants remotely; the families of the defendants were not present. The cases exhibit an infringement of the defendant’s right to a public trial and exemplifies why a minimum degree of public access to hearings is crucial in guaranteeing a fair and humane trial.
III. Physically accessible courtrooms with absent parties
Many jurisdictions provide for remote hearings where the parties’ physical attendance is substituted by audiovisual transmission into the courtroom, while the judge and public are physically present.
Germany had a respective provision for civil cases in place even before the pandemic began,42 yet not all German courts resort to this solution.43 The UK passed legislation on video and audio link in court proceedings through its Coronavirus Act 2020.44 Both legislations permit the concerned parties, their legal representatives and witnesses to stay at another location in the course of a hearing for oral argument and to transmit their images and sound into the courtroom in real time. Similarly, Italy’s legislation on SARS-CoV-2 substitutes the defendant’s physical presence with video transmission in criminal cases.45 While the mentioned actors are exempted from physical appearance in the courtroom, spectators must physically appear in the courtroom.46 In practice, the provisions do not construct a “virtual courtroom”, but simply replace the physical attendance of claimant, defendant and witnesses with audiovisual transmission.
This model has drawbacks in pandemic times: social distancing measures cannot be effectively implemented in spatially confined galleries or for prominent cases with high public attendance. Additionally, spectators might not be willing to attend an oral hearing, since the mere existence of social distancing provisions carries a chilling effect on the public.47 In practice, such a legal approach amounts to de facto public exclusion.
IV. Access for media representatives
UK law permits a court to hold a virtual hearing via audiovisual means (e.g. Skype).48 In exceptional circumstances, the judiciary provides for media representatives to log in to the hearing remotely.49 In these instances, public access to a physical courtroom is substituted with individualized access for media representatives to a virtual courtroom. Similarly, while the German legal system does not envision virtual courtrooms at all, it does seek to replace (physical) public access with (physical) access for media representatives in these pandemic times:
The German state of Bavaria argues that its regulation on the SARS-CoV-2 state wide shutdown does not infringe upon the principle of public hearings, since members of the press are exempted from many of the lockdown provisions and may therefore attend hearings in court.50 The District Criminal Court of the City of Hamburg (Landgericht Hamburg) decided to bar the public from attending hearings in the case against former concentration camp warden Bruno D.51Members of the press, however, may monitor the trial from another room within the court building, to which the trial is being broadcasted live.52
This model may serve as a compromise between protecting the public’s health and guaranteeing public hearings in pandemic times.53 However, since the media only covers selected cases, it restricts the principle of public hearings to cases of broader interest it chooses to cover.
V. Live broadcasts
Before the pandemic, US and UK courts already had provisions in place54 or participated in pilot projects55 that allowed
41 BBC, ‘Man sentenced to death in Singapore via Zoom’(BBC News, 20 May 2020); BBC, ‘Coronavirus: Nigeria’s death penalty by Zoom “inhumane”’(BBC News, 6 May 2020).
42 Zivilprozessordnung 2005, s 128a.
43 Although German civil procedure allows for audiovisual transmission of the concerned parties, the approach has practical limitations. Many courts neither have the technical prerequisites nor the technical know-how or budget to conduct a video transmitted oral hearing, B Windau, ‘ZPO-Überblick: Verhandlung im Wege der Bild- und Tonübertragung gem. § 128a ZPO’ (ZPO Blog, 26 April 2020).
44 UK Coronavirus Act 2020, schedules 23-27.
45 Decreto-Legge (no 18) 2020 Art 83(12).
46 The UK Coronavirus Act 2020, schedules 23-27, goes further and theoretically allows for live streaming over the internet. So far, however, no respective broadcasts have taken place on a wider scale.
47 The German state of Bavaria serves as a prominent example: It implemented a lockdown within the state, allowing to leave one’s own house only for ‘good reason’, Bayerische Verordnung über eine vorläufige Ausgangsbeschränkung anlässlich der Corona-Pandemie 2020, s 1(4) – participating in a courtroom proceeding as spectator, however, is not mentioned as an example for ‘good reason’; similar provisions exist in the states of Berlin, Corona Eindämmungsverordnung 2020, s 14(3), and Saxony, Allgemeinverfügung zum Vollzug des Infektionsschutzgesetzes: Maßnahmen anlässlich der Corona-Pandemie 2020, s 2.9.
48 Civil Procedure Rules 1998, part 39.2; UK Coronavirus Act 2020, schedule 25.
49 Judiciary of England and Wales (n 38).
50 Bavarian Minister of Justice, ‘Corona-Virus: Maßnahmen der bayerischen Justiz’(24 March 2020).
51 Landgericht Hamburg (n 32).
52 Ibid, the arrangement became necessary, since otherwise the 93-year-old defendant might not outlive a judgment or the case would have to be heard anew. Several witnesses are holocaust survivors of old age and had already testified in pre-pandemic hearings; a new hearing would most likely impair their attendance.
53 Eschenhagen (n 36).
54 The UK allowed live broadcasting of selected Court of Appeal cases and at the Supreme Court, it considered extending coverage to sentencing remarks in the Crown Court, see The Crown Court (Recording and Broadcasting) Order 2020(Draft).
55 For example the US pilot project on cameras in federal courtrooms, Federal Judicial Center, ‘Video Recording Courtroom Proceedings in United States District Courts: Report on a Pilot Project’ (2016).
for remote live feeds of hearings accessible to any spectator. The courtroom becomes “virtual”, attendance is open to all with an internet connection, while only the concerned parties have the right (and the technical prerequisites) to actively participate in the hearing. In the UK, the pandemic accelerated plans to broadcast lower court hearings live over the internet, although so far, such broadcasts have not been widely implemented.56
The openness towards video livestreams of hearings in the US (and to a lesser degree the UK) rests on the fact that the expressive function of trials is more embedded in their legal cultures. They favor a greater range of perception than mere physical access to courtrooms warrants. In the US, audiovisual transmission from the courtroom began as early as 1935 in the Bruno Hauptmann trial and has been practiced throughout the 20th century.57 Among US scholars, theoretical debate on its legitimacy is qualitatively and quantitatively advanced and still ongoing.58 Today, most US states allow for live broadcast of courtroom proceedings. The matter has even grown into a business, with a private commercial TV station, Courtroom Television Network (Court-TV), focusing entirely on live broadcasting of courtroom proceedings. This tradition illustrates why jurisdictions like the US or the UK seem to be more at ease with guaranteeing public hearings by live video broadcasting in pandemic times.
In contrast, Germany, France and several other EU Member States, in which the notion of publicity dominates, traditionally and exclusively rely on physical access to the courtroom in order to conform to the principle of public hearings. These legal cultures limit the functions of public hearings to transparency and control of government action, which are adequately satisfied by granting the public physical access to hearings. Consequently, live broadcasting over the internet with remote access for the interested public is not permitted.59 In the words of the German Constitutional Court: “Proceedings take place in public, but not for the public.”60 Even in pandemic times, these jurisdictions seem not to deviate from this stance.
E. CONCLUSION
What lessons can be learned for ensuring the human right to a public hearing in times of a pandemic?
First, solutions may differ from one legal field to another. While non-essential civil proceedings may be postponed, criminal justice must guarantee a public and at the same time speedy trial and therefore deserves a more flexible approach in times of a pandemic.
Secondly, some legal cultures understand the human right to a public hearing not exclusively as a means to guaranteeing the transparency notion of publicity. Rather, they will be used to the idea that legal proceedings are signifying practices and that their significance can be employed in a politically or sociologically valuable manner. Those legal cultures may be more comfortable with live broadcasting of legal proceedings and will encounter less difficulties of enabling public hearings in times of a pandemic.
Thirdly, legal cultures that do not identify in such a manner, will generally expect that the human right to a public hearing is limited to physically opening the courtroom to the public. Since these legal cultures will encounter difficulties of enabling public hearings in times of a pandemic, they will have to re-evaluate how the right to a public hearing can be ensured without the public’s physical presence in the courtroom. In particular, the role of video broadcast might require reconsideration in light of the lack of alternatives.
Fourthly and somewhat generally, irrespective of the perception of the human right to a public hearing, temporary substitution of public access to hearings with exclusive access for media representatives may be a viable compromise in pandemic times. It conforms to both the notion of publicity as well as the expressive function of trials, while keeping in line with efforts to prevent the spread of a lethal virus.
This article does not claim to draw exhaustive conclusions on the issue of public hearings in pandemic times. Nevertheless, these conclusions illustrate how a crisis such as a pandemic questions previously unchallenged legal notions – often unnoticed by judicial actors. Regarding human rights law, the current pandemic requires us to re-evaluate how domestic jurisdictions implement the right to a public hearing.
56 The UK Coronavirus Act 2020, schedule 25 s1, s2, extends live broadcasting to some lower courts by amending the Courts Act 2003 and The Tribunals, Courts and Enforcement Act 2007.
57 P Thaler, The Watchful Eye, American Justice in the Age of the Television Trial (Praeger Publishers 1994).
58 Ibid; see furthermore pioneer works concerned with online courts such as R Susskind, Online Courts and the Future of Justice (OUP 2019); E Katsh, O Rabinovich-Einy, Digital Justice (OUP 2017); R Sherwin, Visualizing Law in the Age of the Digital Baroque (Routledge 2011).
59 BVerfGE 1 BvR 2623/95.
60 Ibid, para 68 (translation by authors).