The Right of Access to Justice in Serbia during the Coronavirus Pandemic

By:  Brankica Todorovic, Katarina Simin and Milica Mihic, Republic of Serbia

Brankica Todorovic, Katarina Simin and Milica Mihic are students at the Republic of Serbia Judicial Academy. All opinions expressed in this piece are solely those of the authors as external experts and do not necessarily reflect the official position of UNODC. 

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The COVID-19 pandemic is a global health crisis and the measures taken to combat its spread have been some of the most disruptive events to daily life that humankind has faced since the 1918 flu pandemic. So far, the coronavirus has affected a multiplicity of countries and territories around the world, with more than 53 million cases registered by November 2020.

Faced with the challenge of protecting public health and preventing the further spread of the virus, the Republic of Serbia declared a state of emergency on 15 March 2020. The Constitution permits the state to derogate from certain rights guaranteed by the Constitution, but only to the extent required by the severity of the situation. During these difficult times, people needed to be able to access courts and legal proceedings, and the state needed to ensure the functioning of the justice system, while protecting the health of both employees, justice actors, court visitors and parties in the proceedings. Priority was given to urgent judicial matters, such as urgent criminal proceedings involving in-custody accused.

The exercise of the right of access to court for the in-custody accused was carried out in an alternative manner, namely by using video-conferencing applications. Keeping in mind their right to a fair trial and the urgency of these proceedings, the government issued a decree on the manner of trial participation of the accused in criminal proceedings. During a state of emergency in criminal proceedings before a first instance court, when the president of the panel finds that the presence of the accused at the main trial is challenging, due to the danger of spreading a contagious disease, he may decide to ensure the defendant's participation in the main trial by digital means, if this is possible given the technical conditions. This approach could raise some new issues, as it is difficult to ensure the transparency of the court proceedings in this manner. However, it was concluded  that it was more important to ensure that in-custody defendants were tried in a reasonable time than for them to be physically present in court, especially since it was uncertain how long the state of emergency would last.

The state of emergency remained in effect in Serbia for a full month, after which the spread of the pandemic had stabilized in Serbia, and the state of emergency was ended. Due to the relatively stable situation, trials are being held in courtrooms in Serbia, following all the guidelines issued by the WHO.

The pandemic has presented us with a plethora of challenges and more will certainly come our way. We, as members of the judiciary, need to be prepared to rise to the occasion while preserving and protecting fundamental human rights.