The trials and the pandemic

The failure to make remote judgments due only to the absence of an agreement by one of the disputing parties, assumes in itself the contours of a serious prejudice to the purposes of justice.

Much has already been written on the subject, regarding the Law that established exceptional and temporary norms for the conduct of judgments by means of remote communication, in the scope of the Covid-19 pandemic: dealing with judgments that matter the inquiry of witnesses, statements by the accused or statements by the parties, the rule is that they will take place in person in court, with due regard for the maximum number of people and other safety, hygiene and sanitation rules defined by the General Health Directorate (DGS) .

There are only two exceptions to the law. The first concerns situations in which one of the procedural actors is over 70 years old, immunocompromised or has a chronic disease that, according to the health authority, should be considered at risk. In these cases, you will have the right to participate in the trial via teleconference, video call or other equivalent means of distance communication, from your legal or professional domicile.

The second exception applies when it is not possible to observe all the mentioned safety, hygiene and health rules. Also in these cases, judgments may be carried out through the appropriate means of distance communication, if such a procedure cause no harm to the purposes of justice and provided that the parties so agree.

What follows from here? That whenever it is not possible to carry out the judgment in person with observance of the maximum number of people and other safety, hygiene and sanitary rules imposed by the DGS - which, in view of the existing reality, will often happen - it will be enough that one of the litigating parties does not give its agreement to the hearing by means of distance communication, so that it is postponed indefinitely. And this, it should be stressed, even in those cases in which the Judge himself considers that the performance of that remote judgment would not cause any prejudice to the purposes of justice.

It is understood, of course, that when it comes to assessing whether conducting a trial through distance media is susceptible or not to harm the purposes of justice, be the judge of the case to decide such issue. What is no longer understood, however, is that when it considers that the holding of that distance hearing does not cause any damage to purposes of the realization of justice, that same Judge be held hostage (and also the justice itself) of a litigant party who will then decide, even if without reasonable reason, not to give his indispensable agreement for that purpose.

And we know very well that, more often than not, considering selfish interests always in conflict, one of the litigating parties may want to delay the process ...

Let us be clear: in order to avoid causing damage to the purposes of justice, it is not enough for the legislator to foresee that the Judge may refuse to make judgments through appropriate means of distance communication. It is also necessary that, in the absence of invocation and proof of impediment that can be attended by either party, the same Judge may decide, without further ado, to carry out the same virtual hearing to produce evidence and judgment.

At a time when so many and so justified concerns fall on the problem - now aggravated by the pandemic - of the slowness of justice, it would be essential to understand that the failure to hold remote judgments due only to the absence of an agreement by one of the disputing parties, it assumes in itself the contours of a serious damage caused to the ends of the realization of justice, which this same law did not know how to prevent, as was expected and imposed.

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