The Judicial Profession and the Ethical Limits of a Virtual Justice System

Judge Marcelo Vazquez is a Judge of the Criminal, Juvenile and Misdemeanor Chamber of the Autonomous City of Buenos Aires, Argentina. He is also the focal point for the implementation of the Judicial Ethics Training Tools in the Judiciary of Buenos Aires.

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Virtual means offer alternative solutions to direct, personal contact when it is not possible, especially nowadays given the conditions imposed by the COVID-19 pandemic. At the same time, there is the risk that the apparent advantage of virtual systems may create a false sense of effective communication. Virtual media, which was originally an exceptional and transitory instrument for the administration of justice, may become the general rule. As a consequence, this could lead to a depersonalization of the parties in a trial and a dehumanization of the trial itself.

Therefore, the right question is whether it is appropriate to continue to use virtual platforms in court proceedings in the “new normal” after the pandemic. Furthermore, we need to consider whether it is ethical to deliver judgements electronically, without personal contact and at a distance, and if so, how this form of remote justice is compatible with the Bangalore Principles of Judicial Conduct.

In this regard, the question is whether the use of virtual means can guarantee judicial independence and impartiality and to what extent such means affect propriety, as propriety and the appearance of propriety are essential elements of the judicial function.

The appraisal of what a judge "has done, or can do" is uncertain if the parties are not confident that they can properly intervene, if they are not sure of the security of the virtual environment or its sufficiency to keep an eye on the actions of the judge and the other party. The symbolic character and solemnity of the trial, as the fundamental and most relevant phase of the criminal process, can be reduced to the same value as a television series.

It is also open to debate whether immediacy or orality in a virtual setting are equivalent to in-person presence as requirements for the validity of the trial, and also whether, when procedural laws refer to courtrooms, they refer to real or virtual settings.

However, it seems evident that the natural environment for conducting an oral or jury trial is via in-person participation. In this regard, article 41 of the Argentinian Criminal Code establishes that personal contact hearings are required, with the strong ethical understanding that the state must look into the eyes of the person who is to answer for his or her offence before exercising its punitive authority. [1] Article 14.3.d of the International Covenant on Civil and Political Rights [2] similarly describes that the right of every individual charged with a criminal offence is "to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing". [3]

Therefore, in-person presence [4] is inherent to the concept of immediacy. In this sense, the Human Rights Committee indicates that to satisfy the rights of the defence guaranteed by article 14, paragraph 3, of the Covenant – especially its provisions (d) and (e), every criminal trial must provide the accused with the right to an oral hearing at which he is allowed to appear in person, or be represented by counsel, and where he may present evidence and examine witnesses. [5] This is the only way to meet the requirements of a fair trial.

The ongoing health emergency is an excuse that fades away as a valid reason given society’s progressive return to normality and also taking into account that other essential state services are provided in-person even in the context of the pandemic.

Justice and the physical presence of judges at hearings – the central stage of the trial – are as essential and indispensable as the presence of a doctor and his team at a surgical operation or a transplant; that of representatives in legislative chambers when debating a law; or that of the authorities of the executive branch when exercising the most transcendental acts of government. There is no possible substitution for in-person communication in these cases. Of course, it is possible to have a medical consultation by video call in the event of a minor illness or emergency, or for representatives to work on bills via videoconference for committee meetings before the debate in the legislature, or for the president or foreign minister to conduct various activities virtually, just as it is also possible to use these telecommunications means to carry out various procedural acts remotely.

I do not deny the advantages of the use of new technology, nor do I pretend that this reality does not exist in an interconnected world where our lives and relationships are virtual. It is solely a matter of recovering the human aspect of the judicial function, understanding its impact on people, and recognizing the ethical requirements to face and look into the eyes of the individuals subjected to judicial judgement.