To help take a look into this investigation, the EPHESUS project recently spoke to Pilar Ríos, from the University of Seville, who shared some insights into this research and its vital role in identifying specific challenges and best practices to enhance mutual trust and cooperation among EU Member States.
How did the literature review contribute to understanding the theoretical and practical issues related to the EAW and its alternatives?
PR: Prior knowledge of the theoretical framework – which is obtained with an exhaustive literature review – is essential, especially to be able to identify problems around the question examined and thus design the protocol of the interviews that will have to be carried out later.
Thanks to the study of the written sources, the key issues could be identified, as well as systematised into three large sections: conclusions related to the breach (or not) of procedural and fundamental rights in the proceedings that occurred during Covid-19 pandemic, conclusiones related to the use of technology in EAW procedures during the pandemic, and conclusiones related to the use of alternative instruments to the EAW.
In this case, the examination of the theoretical framework has also served to highlight a substantial difference between the theoretical approaches and the practical vision that has subsequently become evident in the interviews.
What were the key findings from the literature review on the impact of COVID-related judicial proceedings adaptations on the use of the EAW?
PR: Covid-19 pandemic has affected the functioning of justice systems all over the world. In general, all justice systems have been paralysed, reason why pandemic caused delays in justice systems both nationally and internationally. The responses given by the MS to the pandemic situation in relation to the EAW have not always been homogeneous, although it has been possible to identify common practices and draw conclusions that are generally applicable:
1. Despite the difficulties, the issuance of EAWs continued as normal, although in some States it was restricted to certain cases of an emergency nature and/or exceeding a certain threshold of seriousness.
2. It is observed that a large part of the MS postponed deliveries resulting from the execution of an EAW, until the end of the health crisis. Given the physical impossibility of proceeding with delivery, in practice the MS have postponed it under art. 23 FD 584. However, the rationale for this has not been unanimous, but rather 2 causes contemplated in said provision have been or are used interchangeably, depending on the specific case or the MS in question: the general cause of “force majeure” prevailing in article 23.3 FD or the reason for humanitarian reasons contained in article 23.4 FD. The latter was understood to be more in line with the situation of uncertainty surrounding the pandemic in the global context.
3. Provisional or precautionary measures have been extended in time.
4. Development of the use of technologies. Most communications between judicial authorities were carried out at the time of the pandemic on paper, so Covid-19 affected the practice of international legal cooperation at the European level. Since it was not always possible to proceed with such communications, solutions had to be sought in this regard. In this sense, the promotion of the use of technological means was very significant. The use of videoconferencing also helped to overcome the obstacle of the impossibility of physical transfers at that time.
5. The pandemic situation revealed, in this sense, the need to promote the search for alternatives to EAW (above all, that they do not involve physical transfer), highlighting the underutilisation of other instruments of international legal cooperation.
How did the qualitative interviews with practitioners from different jurisdictions help in identifying emerging needs and best practices for the use of alternative instruments to the EAW?
PR: Interviews with practitioners from different jurisdictions have been of undeniable importance. Apart from having served to know the uses, practices, and problems, detected in their daily work in the application of the EAW, they have helped to understand the true scope of the issue that, in some aspects, was separated from the provisional conclusions that had been reached after the review literature.
With regard to the use of alternative instruments in particular, the most remarkable thing is how two conclusions are unanimously highlighted: the importance of the use of alternative instruments to EAW, on the one hand, and their scarce practical use, on the other.
Regardless of having served to verify this reality, their contributions have been very valuable in identifying the factors that lead to this insufficient use, among which the scarce knowledge about such instruments stands out. It is undoubtedly necessary to increase the level of awareness among legal operators on the need for the use of alternatives to the EAW.
The interviews show the need to improve the level of training of legal practitioners in this regard, and to carry out training at national and international level, which will lead to an increase in awareness and knowledge of mutual recognition instruments as alternatives to the EAW. The interviewees also point out the need for a European push to encourage the use of the aforementioned alternatives to the EAW.
What were the most significant breaches in fundamental and procedural rights identified during the pandemic?
PR: The literature review highlighted how, during the pandemic, there was a potential impact on some fundamental and procedural rights, such as the right to liberty and security – in cases where pre-trial detention has been prolonged – or the right to a fair trial without undue delay.
The possible impact on the rights of defence is also repeatedly mentioned, due to the impossibility of direct relations between lawyer and client during periods of confinement, as well as the obstacles to obtaining and involving interpreters in the proceedings. In this regard, reference has been made to possible limitations in the assistance of the lawyer before and during the police statement, problems related to the confidential interview with the lawyer, and limitations on lawyers’ access to prisons.
However, despite the fact that the pandemic situation probabilistically increases the risk of violation of fundamental and procedural rights, in practice, the majority of professionals have not identified risks or violations of these rights. Sometimes these violations are due – and this has been pointed out in several interviews – to structural problems, either arising from the EAW legislation itself, or originating from failures in the system of international criminal cooperation. In general, most of the problems that could affect the rights of defence (such as confidentiality between lawyer and client) had been resolved through telematic means.
In any case, when the interviewees themselves mention the possible affectation of the right to a trial without undue delays, they recognise that the delays have been justified, due to the pandemic.
How did these breaches impact the use of alternative instruments to the EAW?
PR: Undoubtedly, the difficulties associated with the pandemic and the risks they could pose to adequate protection of fundamental and procedural rights have highlighted the importance of having other instruments of cooperation, other than the EAW, which are not conditioned by the aspect most affected by the pandemic and its restrictions: physical delivery. They have also shown the need to have instruments that are not based on physical paper transfers, which are as unagile as they are costly.
All these circumstances have served to make legal operators aware of the importance of having alternative instruments, capable of operating with agility and regardless of the physical constraints and limitations that may occur in the future.
Can you elaborate on the main finding related to COVID-19 adaptations in EAW cases?
PR: In our opinion, the main adaptation that was applied to EAW cases because of the pandemic was the development of the use of technologies, as can be deduced from the research carried out.
There has been an increase in the use of videoconferencing in hearings, interviews and statement taken, as well as in the use of technologies in the exchange and access to procedural documents and in the conduct of the trials.
It should not be lost sight, however, that use of videoconferencing and remote means for conducting pre-trial and trial proceedings can involve an impact on procedural rights.
Technology has been frequently relied upon by the MS to organise hearings on a remote basis to limit the spread of the virus. However, if used “by default” there could be a negative impact on the minimum standards as developed under Art. 47 or 48 of the CFREU and Art. 6 of the ECHR, in particular on effective participation in proceedings, including one’s “right to be present”. Indeed, videoconferencing can affect the right to be present at trial and access to adequate facilities for the review of evidence.
Inappropriate use of videoconferencing can also compromise the proper exercise of the right of defence.
Several international institutions and organisations recommend the following good practices when using videoconferencing in criminal proceedings (General Secretariat of the Council of the European Union, 2022; European Union Agency for Fundamental Rights, 2020; European Criminal Bar Association, 2020; International Commission of Jurists, 2020):
- Remote hearing should be based in law (explicitly provided in the national legislation), respecting all rights linked to defence rights.
- For substantial acts (e.g., first interview carried out during the investigation, presentation of the charges, or when deciding on pre-trial detention) suspected person should be present. Thus, remote hearings should mainly be used for bureaucratic procedural acts.
- The use of videoconferencing is recommendable for low and medium criminality cases (instead of issuing an EAW, to use another alternative instrument like an EIO).
- Use that is time-limited and clearly necessary and proportionate based on the circumstances. European Union Agency for Fundamental Rights (2020) has already explained that videoconferencing could be used where deemed appropriate following a case-by-case assessment.
- It is necessary to have technical conditions that enable smooth transmission of voice and images. At this respect, access to the case file should be granted to the suspect or accused and to lawyers in both issuing and executing State, and any documents to be examined during the interview or the trial should be made available to the suspect or accused and to the lawyers in both States before and during the interview or trial. It is necessary to create an online folder for the exchange of documents before and during the trial, and the digitalisation of documentation (it would be a good practice to prepare electronic versions of the most important documents in advance).
- The court should explain to the requested person in detail how the hearing will proceed and what the technicalities of online communication are, and that they allow for the effective exercise of all the rights that the law guarantees to the person, so that they do not feel insecure, unequal or isolated.
- In addition, digitalisation would serve to promote dual legal representation, thereby improving the right to a fair trial and the right to defence. The preparation of the remote hearing should ensure the participation of both lawyers, in both issuing and executing State.
- At each stage of the proceedings, the person should be provided with an adequate and reliable communication link with their lawyer with respect to the safeguards of lawyer-client confidentiality. A possible good practice to ensure lawyer-client confidentiality would be to use phones that could not be recorded or intercepted.
- The right to have an interpreter and case materials essential to safeguard the rights of the defence translated into the native language of the suspect or accused should also be mandatory in remote hearings.
- Trial in the physical presence of the accused should remain and always be the rule, and a remote trial should require the informed consent of the suspected, accused or convicted person.
- The suspect or accused should always be heard in the physical presence of a judicial authority of the executing State, except consent for remote hearing.
- After the hearing is concluded, the judicial authority of the executing State should draw up minutes of the videoconference hearing.
- The hearing should be audio-visually recorded and the recording should be made available to the parties.
- Finally, criminal trials are generally public and open to the public. The use of videoconferencing needs to properly consider the right to a fair and public hearing.
In short, if the aim is to attribute to virtual presence a comparable value to physical presence, under certain conditions, it will be necessary to provide the former with additional guarantees.
What opportunities and challenges were identified in using digital solutions for remote judicial proceedings during the pandemic?
PR: The pandemic has highlighted the need to improve technological means in the field of international legal cooperation, especially in the field of EAW.
Although the justice system underwent a significant disruption due to the pandemic, this situation should also be perceived as an opportunity to integrate technology and to eliminate outdated and time-consuming procedures. There has been an enormous development of technologies in the field of international legal cooperation.
The pandemic reality has also revealed the abusive use of paper in international legal cooperation, which logically hinders and limits said cooperation and the right to defence, being the digitalisation of documents a good practice.
It should be borne in mind, however, that the use of videoconferencing has also an impact on procedural rights and guarantees, which is a considerable challenge. In this sense, the use of videoconferencing in criminal proceedings has been shown to entail the following main drawbacks:
- The natural inconveniences derived from the physical absence of the accused. Physical presence ensures a series of advantages and guarantees (such as respect for the principle of immediacy).
- Limitations stemming from connectivity issues and the inadequacy of suitable equipment.
- Restrictions in lawyer attendance before and during police questioning, as well as in lawyer access to prison (when technical limitations exist).
- Problems in conducting private interviews with the lawyer and general problems in communication with the lawyer. Also, problems to coordinate hearings with interpreters and/or lawyers at the same time.
- Issues in exercising the right to access documents (during the proceedings); for example, a lot of documents can be not available in electronic format.
- Limitations in exchanging documents in electronic format in real time during the trial (or pre-trial proceedings), among others.
Likewise, in this context of “new opportunities”, the need to improve the level of training and awareness of legal operators through new technologies, the implementation of training at national and international level, the creation of common platforms (such as Eurojust) to improve the exchange of information, or official platforms or applications (such as the application used by prosecutors for the management of the EIO) have turned out to be the most revealing proposals.
Pilar Martín Ríos is a Full Professor of Procedural Law at the University of Seville (Spain), and Head of the Procedural Law Department. She holds a PhD in Law from the University of Seville and Degree in Criminology from the University of Salamanca. Pilar Ríos is co-director of REDHITEC, Ibero-American Network of Researchers on the Administration of Justice, New Technologies and Human Rights. She is responsible at the University of Seville for the EPHESUS (2024-2026) and EUROPROSPECTS (2025-2027) projects, supported by the European Commission (DG-JUSTICE).
The EPHESUS consortium extends its sincere thanks to Pilar Ríos from the University of Seville for her contributions to this insightful analysis
For readers interested in a detailed analysis of pandemic-related adaptations in European judicial cooperation, we invite you to explore the full report, “Overview of Pandemic Adaptations and Opportunities”, available on the EPHESUS website.
The EPHESUS project is led by the Centre for European Constitutional Law (Greece) and is partnered by IPS_Innovative Prison Systems (Portugal), the University of Seville (Spain) the Center for the Study of Democracy (Bulgaria), and European Strategies Consulting (Romania). To know more about this initiative, please visit our website.
Supported by the European Union. Views and opinions expressed are however those of the author(s) and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the European Commission can be held responsible for them.
