The impact of Covid-19 on the functioning of Thai courts has created case backlogs and raised concerns over the human rights of the accused during trials via video conferencing, legal experts shared at a panel discussion hosted by the European Union.
Highlighting issues and challenges that practitioners encountered in the first half of this year when the courts introduced various measures to counter the spread of Covid-19, the event recently co-hosted by the International Commission of Jurists (ICJ) and Chiang Mai University's Faculty of Law underlined the need to ensure effectiveness and accountability within the legal system while upholding the rule of law and enhancing institutional capacity. Panellists also shared their thoughts on the future of the judiciary, proposing ways to adopt new guidelines and new policy direction.
International human rights standards concerning court proceedings during a pandemic include the informed consent of those involved in the virtual form of court hearings, confidentiality between counsel and client, and the suitability of presenting evidence through video conferencing.
Justice Alfred Mavedzenge, a co-ordinator at the Centre for the Independence of Judges, suggested prioritising gender-based violence and domestic violence cases, which globally have risen among vulnerable groups such as women and children.
He also emphasised the need to scrutinise the lawfulness of detention orders, which he described as depriving people of their liberties and rights.
"Among other issues, I would like to suggest the decriminalisation of minor offences to reduce the number of caseloads in courts today because after a series of postponement of hearings there is a sizeable backlog. It is also tantamount for the government to invest in equipping our courts with ICT devices and capable human resources to manage them," said Mavedzenge.
He noted it was challenging to present evidence via video because certain types of evidence needed to be presented in person. He suggested the need for a hybrid type of court hearing where this could be made possible.
Judge Weerapatr Chairatt of the Office of the President of the Supreme Court said that during the pandemic many cases were postponed as changes were implemented to help run court proceedings. Virtual hearings were heard for civil cases at first and later included criminal cases.
Regulations were implemented to ensure that virtual hearings are conducted lawfully, with special attention offered to the human rights of the defendant.
He also recommended the use of granting bail requests as part of a provisional release scheme during the pandemic to help reduce the number of detainees in less serious cases.
Supervisory measures had also lessened cases involving infringement of liberties of the accused.
Above all, he agreed that it has been the electronic hearings that enabled the courts to continue functioning during the height of the pandemic.
Looking to the future, Judge Weerapatr said the court electronic system should be developed so that parties can submit documents through an e-filing system and use the Thailand Court Integral Online Service (CIOS) for online bail requests.
Even after the Covid-19 situation improves, he said, these procedures will prove beneficial for people residing in remote areas who can now submit documents electronically thus reducing the need to travel to the courts and concurrently speeding up the court process.
"The courts have been gradually resuming their normal duties since the beginning of October. We have begun to expedite the backlogs that have accumulated through the months. Since the situation of Covid-19 has improved the courts have sped up witness hearings and have resumed courtroom procedures. The Court of Justice will also operate outside the office hours and on weekends to help reduce the backlog of cases. The president of the Supreme Court has also allowed us to record the proceedings of criminal cases by both audio and video, which in turn helps to minimise the time required for judges to read aloud witness testimonies in court proceedings," Judge Weerapatr said.
Prosecutor Chantima Thanasawangkul, deputy director-general, Department of Civil Rights Protection and Legal Aid (Office of the Attorney General), said video conferencing via mobile application had greatly helped with court proceedings during the pandemic.
Statistics gathered so far indicate that it has played a major role in judicial matters.
"When leaving home is no longer an option to conduct a court procedure, people wishing to file a petition for their absence can now co-ordinate with the court to conduct video conference via mobile application. This procedure has also been used for witness examination hearings and to ensure the person involved can accept or decline the petition or the motion, among other things. We successfully used this online procedure in a dispute settlement case where the claimant, who was abroad, gave evidence via video conference to support his case."
However, criminal cases have not been been as successful, largely because fundamentally there should be a physical presence in the courtroom of all concerned parties.
"It can't be refuted that in such scenarios justice is delayed," said Chantima. "We try to mediate to reduce the backlog of cases with the help of electronic media as much as possible.
"On legal aid, which I note is my main responsibility, we are ensuring that open communication is available between the public and us in regards to receiving rights protection. Thus far, we have trained prosecutors in this field of work in our 162 offices throughout the nation, they communicate with clients through video conferencing, which has helped reach a wider audience."
Chantima also spoke on the assistance justice fund, designed to help vulnerable groups defend themselves in court.
"We try to use this mechanism to provide financial assistance in the area of facilitating bail," noted the prosecutor. "Of course, with criminal cases, there are challenges involved as mentioned earlier about the requirement by law to conduct witness hearings with the physical presence of the person in court. We need to urgently resolve these challenges to move forward in the time of a pandemic.
"I would suggest a more flexible approach be taken in such witness examination hearings. For instance, the use of scientific evidence like in the form of DNA to add clarity to the evidence, coupled with the usual procedure of cross-examination of witnesses, can in my opinion help to lessen the burden for the witnesses to be physically present in court. For me, if there is an attempt to use forensic science techniques like DNA, all of this will add clarity to the evidence. In some cases witness examination hearings can be flexible if we can use scientific evidence aside from using normal procedure, cross-examination of witnesses, this could probably lessen the burden for the witnesses to be physically present."
To successfully weather this pandemic, Chantima suggests budgets be allocated to further prepare for court equipment and facilities that address the new normal standards. There has to also be a greater emphasis put on educating people on how to use new technologies that have gained prominence in court procedures as a result of Covid-19.
"In whatever capacity you happen to be involved in the Thai judiciary system, the main question we should all be asking today is how can we best facilitate justice in such trying times? For one, we need to tangibly address the obstacles and glitches found within our court procedures and regulations, and then find solutions to such areas as taking and examining evidence, and others.
"We need to continue to fine-tune this system by working together with all parties."
