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The right of an accused person and COVID 19 in the criminal courts: an advice to Ethiopian courts

The Novel Coronavirus (COVID 19) virus has caused a lot of confusions and challenges to our Court System. While recognizing the seriousness of the virus, courts are struggling on how to deal with an accused person to appear in court in person to deal with his/her matters. Ethiopian courts could use the practice below to deal with the matters that are before the courts.

One of the concerns is the spread of the virus – social distancing – vs. an individual right – the right to be tried within reasonable time and the presumption of innocence, in the context of both bail and trial. For example, in a bail context, courts have to adhere with the right to secure bail within 24 hours pursuant to Canadian Charter of Rights and Freedom. This requires a balancing act.

To remedy the social and legal concerns, courts came up with a clever idea to use technology as a tool to dispense justice.

The individual’s right to secure bail

From the get-go, an individual is presumed innocent until proven guilty. The notion that an individual’s presumption automatically entitles the individual for his/her bail to be release. Thus, avoiding incarceration. Meaning, the individual will be charged by police and release by police to appear in court in the future date. As an example, in Toronto, Canada, the police will arrest an individual for an assault. The police will take the individual to the police station and release the person on promise to appear for future date – no need to wait for a bail hearing and no need to go to court. However, if the police determine that the individual must be seen by the judiciary, the individual will have access to a telephone to hear the proceeding over the phone from the police station. Again, avoiding transporting the individual to court. The court could conduct a hearing over the phone and make determination of bail. If the accused person requires surety – a person to bail him/her out – otherwise know us bond, the individual could appear at the police station after the determination is done to sign the papers. This process has eliminated the concern of spreading the virus while addressing the accused right to bail.

In the context of a trial

An individual who is in custody, will have priority to have his/her matter heard as soon as practicable. That is to say, the individual – given the Charter protection, the right to be tried within reasonable time, and presumption of innocence – ought to be heard first. Technology could play a great deal in dispensing these matters. Jails play a great deal of positive contribution of these matters by making speaker phones accessible to the accused. Simple matter that does not require witnesses are easy to dispense with only three participants including the judge – the prosecutor, defense and the accused.

The challenge maybe, when you have multiple witnesses to deal with. Our practice in Toronto Courts taught us to have witnesses wait outside of court or call in a teleconference line to give their testimony. As the saying goes, extra ordinary times require extra ordinary measures.

Matters that are out of custody – accused that is not in jail – are remanded (put over) for a future date to reduce the amount of appearances – social distancing –until this thing goes away or becomes manageable. This approach has worked effectively in our court and I can’t see why it would not work in the Ethiopian judicial system.

There must be a great deal of cooperation required from all stake holders. Such as judiciaries, the police, prosecution office, defense bar, jails etc.

The goal is to respect individuals Charter Right while protecting the public and those who work within the courts system of the transmission of the virus. In addition, with these measures, the public confidence in the administration of justice will improve.

It is advisable going forward, that the court adopt measures such as this (involving technology) to dispense justice in a daily basis to reduce the backlog. Like they say, “Justice delayed is Justice denied”.

Ed.’s Note: Sisay Woldemichael is a Judiciary (Justice of the Peace) and former adviser of communication to the Chief Justice of Ontario, at Ontario Court of Justice in Canada. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected]

Contributed by Sisay WoldemichaelC