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Telematic hearings: a possibility for justice in the world?

The pandemic situation and the application of states of emergency in many countries have changed the way the justice system works. The technological tools available have served as a support at this time.

In May 2020 the United States and Spain held their first telematic hearings in the midst of the Covid-19 pandemic. In the case of the North American country, it was the first time in 130 years that the judicial body conducted its hearings by teleconference and transmitted the audio live. This case was dedicated to the lawsuit that the U.S. Patent Office is facing against a website.

Meanwhile, in the city of Barbastro, Spain, a telematic hearing was held for the first time, following the declaration of a state of alarm in the follow up on a family custody case. The judge, the counsel for the administration of justice and a bailiff took their places physically from the courthouse, while the parties interacted by videoconference from their respective offices or chambers.

In Latin America, the legal system has also been adapted to continue providing services despite the situation of confinement. In Ecuador, for example, a protocol for telematic hearings was approved to guarantee remote justice. As part of the procedure, six virtual courtrooms were installed in the National Court of Justice with a platform for up to 120 concurrent total connections. Through this system it is possible to share documents and record the hearing. 

Telematic hearings still a challenge for the Venezuelan judicial system

The Venezuelan Judiciary suspended the dispatching of courts in the countryThe quarantine period decreed by the National Executive is in progress. In this sense, the cases are suspended and the procedural lapses will not run, but urgent cases will be attended in order to ensure the functioning of justice. The assigned agencies had to take the necessary precautions to maintain the public service channels available to attend cases such as hearings for the presentation of detainees for flagrant crimes, admission of amparo proceedings and the release of persons with sentences served during this period.

For their part, the Magistrates of the Plenary Chamber of the TSJ must maintain a quorum. The Judicial Commission and the Inspector General's Office of the Courts will be in charge of attending with urgency to all emergency cases through the on-call system.

The Constitution of the Bolivarian Republic of Venezuela, in Article 49The Supreme Court of Justice of the Republic, guarantees due process and effective legal protection to all citizens. In view of the pandemic situation, the TSJ was urged to take the necessary preventive measures, considering that article 339 of the Magna Carta states that states of exception do not interrupt the operation of public bodies. The guarantee of due process consists of the right of every person to be heard in any kind of process by a competent, independent and impartial court. It is also highlighted that whoever cannot communicate verbally has the right to have an interpreter appointed, since verbal communication with the authority is a right recognized in August 2014, as highlighted in the article La telemática judicial y la garantía del derecho de acceso a la justicia, de tutela judicial efectiva y del debido proceso; published by Román Duque in the Instituto de Estudios Jurídicos. 

Verbality has been progressively incorporated as a formality to materialize the principles of celerity, brevity, orality, publicity and anti-formalism of the Venezuelan administration of recalled in the aforementioned text. Since it is a requirement in the judicial process, several national laws contemplate the possibility of using information technologies in these legal proceedings, with the intention of not suspending the guarantee of due process under any circumstances. Under this consideration, it is to be assumed that judicial telematics is recognized by the Venezuelan justice system as part of the proceedings. This recognition is also reinforced in the Law of Info-government published in the Official Gazette in 2004, which among other aspects contemplates the right of persons to guarantee the regulation of this technology in the judicial sphere, especially in the cases of: directing petitions of any kind using information technologies and accessing public information through electronic means. 

However, according to the article by Román Duque, the chambers of the Supreme Court of Justice do not use the necessary technological tools. to be able to carry out a telematic hearing, nor to implement expeditious and transparent procedures. On two occasions, resolutions have been enacted (in 2016 and 2018) on the telematic participation of the procedural subjects in the hearings in some of the chambers of the judicial body, without having made considerable progress in the implementation of this purpose.

In Duque's vision "the electronic file and telematic access for hearings, not only of the Criminal Cassation Chamber, but also for those to be held in the rest of the Chambers and courts, would guarantee the non-interruption of the administration of justice and the right to due process in situations such as the suspension of activities in a state of emergency.".

The current situation, due to the pandemic, hinders in most cases the access of the subjects of the proceedings before the Venezuelan justice system.Therefore, in Duque's opinion, in use of the constitutional power to guarantee due process, "judges may rely on procedural analogy, applying, due to their procedural similarity, the rules on the telematic participation of the parties to the proceedings, as referred to in the Ruling of the Constitutional Chamber number 1 of January 27, 2011, which ordered a videoconference from the Venezuelan Consulate in the city of Vigo, Spain, and Ruling 74 of the Court of Substantiation of the Full Chamber of February 2016."said the specialist. In this sentence 74 it is emphasized that videoconferencing can bring together in real time people who are not in the same geographical space, but it must ensure that communication is clear as if they were face to face.

The Venezuelan Judicial Branch does not have the necessary telematic systems. to implement this option that guarantees due process in these times. Duque points out in his text, that the technological platforms that support such action have not been implemented, despite the fact that the installation should have occurred after 2013. At this moment, the procedural subjects with private access to technological platforms are the ones that have been able to guarantee due process.

Access to Venezuelan justice in the midst of the pandemic has been limitedDuque explains, due to restrictions on the rights of mobility, movement, access to public entities and the suspension of judicial cases, because despite the decree of the right to due process, there is no general regulation regarding judicial proceedings in such emergency scenarios.

"In view of these technical shortcomings, I argue that judges may agree to use telematic means to receive communications, carry out transfers of procedural acts and conduct oral hearings during the period of suspension of court days.", he explains in the published text.

At Alan Aldana & Abogados we have been implementing the necessary equipment to carry out this type of remote work to perfection. At the same time, we have international experience in the signing of powers of attorney and international documents where the notary is present by videoconference, as well as in the preparation of clients for hearings by videoconference.

Sources consulted