Judiciary is public and independent, otherwise it does not deserve that name. Judiciary must also be accessible to the citizen. This has been the case since the Enlightenment. Publicity was then introduced to prevent secret trials and wrongful convictions. Publicity is necessary to enable control over the courts. After all, he is not elected.
Minister Dekker has proposed that the interrogations of suspects take place online during sessions with a high security risk, he recently announced. These suspects are therefore not transported to the courthouse, but are interrogated from the courtroom via a video link. Their right to be present at their own hearing is being curtailed. The judge can then not look the suspects in the eye, and has to deal with all the hitches that exist when talking to each other via such a connection. Moreover, the question can be raised whether this kind of heavy business will remain the case. Isn’t this also going to happen in less serious cases?
Public access has been restricted since the start of the corona pandemic. Journalists and interested parties are no longer always welcome, unless they register in advance. Have you forgotten to register? Then the door of the courtroom sometimes remains closed. Even if it concerns the family of the victim or suspect. Sessions also take place (partly) online. The press is often placed in video rooms, but from there the connection to the courtroom sometimes does not work properly. But it is also less easy to follow an online case from the courtroom.
Another corona measure is that the police and the Public Prosecution Service are now more often dealing with cases, the ‘penal order’. Instead of the judge. There is no public or press and hardly any reports are made. So now more cases are settled in a non-public manner, by bodies that, unlike the courts, are not independent.
The Netherlands has already gone quite far, even without corona. Criminal orders have been strongly criticized in the past and have also been empirically studied. Some of the punishment orders are wrongly imposed; the ‘truth-finding’ does not receive the attention it should receive from the police and the Public Prosecution Service. A criminal order can lead to a refusal of a Certificate of Good Conduct (VOG). A job or internship without such a VOG is sometimes no longer possible.
The corona measures therefore lead to a less public, verifiable and independent settlement of cases. They are of course necessary to prevent infections. But are they also temporary? Will we go back to the former situation of (largely) public justice by an independent judge after the corona pandemic? That is the question. It is certainly anticipated that online hearings will also take place in the future. And whether the number of settlements by the police and the Public Prosecution Service will be reduced again after the corona is unknown. Because it is that easy, and also fast.
Is all this a good idea? Online hearings have undesirable effects, research has shown. People are judged more positively ‘in real life’ than on screen. Children who act as witnesses appear less credible online. On the other hand, children often do not understand what is going on when they are heard via a video link. Spectators at a digital hearing find it more difficult to follow the case.
If a citizen has an intellectual disability, this is less well recognized online than ‘live’. This is risky because these limitations must be taken into account. Things can go wrong otherwise, for example if it concerns a vulnerable suspect who has confessed to the police under pressure, something that happens more quickly with people with disabilities. Can a judge properly assess such a statement if it is shown on screen?
Video connections also complicate communication. The contact between the lawyer and the client does not run smoothly when it has to be done online.
Digital sessions have important advantages. In principle, more people can ‘attend’ the hearing, and there is less travel time and costs. Nevertheless, foreign researchers strongly warn against digital hearings, because of the important disadvantages associated with them.
In the Netherlands there is a tendency to focus primarily on efficiency, speed and costs. In addition, the citizen is sometimes ‘forgotten’, as the Benefits Affair has also shown, especially the citizen who cannot keep up (digitally). Can he still attend the sessions and play his part in the future, does he understand what it is about during online sessions? These are important questions. It is therefore desirable to keep digital sessions to a minimum.
Marijke Malsch is professor at the Open University, affiliated with the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR), and is one of the editors of Never dance again? The safe city in times of pandemic. She conducts research into the openness and accessibility of justice.