By Ângela Rodrigues
Criminal Court Judge, Praia, Cape Verde
I joined the Public Prosecutor's Office in 2003, and I have been a judge in the District of Praia since May 2010 in the criminal division. Within the scope of the powers of the judiciary,[1] in addition to being a trial judge, I execute acts of the competence of investigating judge under the terms defined by the Code of Criminal Procedure, and also the execution of criminal sentences.
Cape Verde, like other countries, has not escaped the coronavirus (COVID-19) pandemic. Cape Verde declared the situation of emergency on March 18, 2020 due to the registration of cases of COVID-19 on the island of Boa Vista, and on March 26, 2020, the state of public calamity was declared by Resolution No. 53/2020. The resolution effectively prohibited travel (air and sea) of passengers, throughout the national territory, the closure of public services, with the exception of certain essential services, including the urgent services of the Judicial Courts and the Public Prosecution Office.
Given the entry into force of the state of calamity by Government Resolution no. 53/2020, the Superior Council of the Judiciary issued a Circular (no. 6/2020) establishing that during this period only procedural and judicial acts related to the fundamental rights of citizens would be carried out. These “urgent” cases included minors at risk, trials, other procedural acts of accused persons on remand, and first judicial interrogations. The judiciary directed that electronic procedures be given precedence, as well as reducing the number of people in court.
For purposes of combating the pandemic, the Court organized itself and made available to judges and court officers protective equipment such as masks, gloves, alcohol and alcohol gel (in small quantities), as well as cleaning and disinfection products (in acceptable quantities). In order to manage my courtroom efficiently and reduce close contact with courtroom users. I also instructed my court clerks to prepare a notice, which was placed at the door of the secretariat requesting that the physical distance of one meter be respected, and each user would be attended to one at a time inside the secretariat.
Also during this period I was on shift for a period of 20 days (cumulatively) assuming the functions of Investigating Judge, so I had to perform judicial hearings of first interrogations of accused detainees, even during weekends, whose acts were performed without any use of mask or other personal protective equipment. However, the room where the judicial hearings are performed is spacious, and by that date the city of Praia had not registered any positive case.
On March 28, 2020, for the first time in Cape Verde's history as an independent country and a democratic constitutional state, a state of emergency was decreed by Presidential Decree no. 06/2020. With the state of emergency, Law No. 83/IX/2020 of April 4 was approved, which regulated the processing of procedural acts that ran their terms in the different types of courts. Thus, only acts and urgent proceedings would be carried out during the crisis period, thereby constituting the suspension of the judicial periods of limitation and forfeiture for all acts and proceedings.
Thus, with the first declaration of the state of emergency, I had to postpone all the trials of defendants who were not pre-trial detainees that were scheduled for the first fortnight of April, and I went ahead and rescheduled new dates for the first fortnight of May, which were later postponed until further notice. During the declaration of the third State of Emergency, I conducted two pre-trial hearings of defendants, and although the trials were public, there was no public attendance due to social distancing measures. In one trial I had to appoint an interpreter because the accused was a foreigner who did not speak or understand Portuguese. Both trials were conducted wearing masks, I also decided that for each intervenor heard, the bailiff should clean the space where the intervenor stands and the microphone, with water and disinfectant.
During this period of emergency, I have been in court regularly in order to make orders in cases of arrested defendants, and to process cases of non-arrested defendants because it is not possible to take a large number of cases to my home that need to be dispatched. However, my stay in court has been limited to my office and without any personal contact with other colleagues and other court users. I have only established personal contact, if necessary, with the duty officer, and always with great care within hygiene rules.
Given the increase in the number of cases in the city of Praia where I live and where the Judicial Court of Praia is situated, the capital city is now in the third period of the State of Emergency, decreed on May 2 effective until May 14th.
I am concerned about the possibility of not extending the state of emergency, given the economic and social consequences that the capital city of the country is going through. It is true that since the first state of emergency was decreed, there has been almost no turnout in the court, and our role has therefore been limited to trials of imprisoned defendants. But what will happen after May 14, after the resumption of business and the new normality? I often wonder what the trial sessions will be like in cases with several procedural actors (sometimes more than a dozen), how will my staff and I be protected, given that during the periods of the state of emergency, no more than five individual masks and some gloves were made available to us.
I question what will happen if the court actors who are to attend the trials do not have a mask or other personal protective equipment and the judiciary does not provide such protective equipment? Will I postpone trials because those parties (defendants and witnesses) are not protected with protective equipment? Should the courts make masks and/or other personal protective equipment available to those who do not have them? I believe that the courts should make such equipment available so that trials and other judicial acts (especially first questioning of accused persons in detention for enforcement measures) can take place with the necessary protection.
However, the question is not only the existence or availability of personal protective equipment, it is necessary to organize and adapt the rooms where these acts take place, which in some cases are small rooms, which make it difficult to respect physical distancing rules. Can the principle of public trials be limited when it is not possible to respect physical distancing, leaving only the presence of the critical staff, i.e., judge, prosecutor, lawyers, defendants and witnesses? I answer yes, but instinctively.
I do worry about a return to the so-called “new normal” if the courts are not properly protected. Are we in any way limiting the fundamental right of access to justice enshrined in Article 22 of the Constitution of the Republic of Cape Verde by not holding trials for lack of personal protective equipment or by enforcing the public health physical distancing regulations? I would argue, that trials, even if they are not of defendants who are pre-trial detainees should resume, and new hearings scheduled. The courts may have to consider alternative scheduling mechanisms such as holding a few trials at a time and having a small number of trial participants in the courtroom. Despite these turbulent times, I have great faith and hope that Cape Verde and the world at large will overcome this pandemic and we will return to normality in the near future where our fundamental rights will not be limited in the way we have seen in recent months.
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[1] In accordance with Articles 60 and 61 of Law No. 88/VII/2017 of 14 February, which defines the organization, jurisdiction and functioning of the courts
Ângela Rodrigues is a Judge of Criminal Court No. 1 of the District of Praia, Cabo Verde.
The original version of this post was written in Portuguese and translated by Dr. Saidu Bangura, Director, Masters in English Studies and Language Teaching. University of Cape Verde.