Validity of a partial in-camera hearing during a criminal appeal hearing during the COVID-19 pandemic and exclusion of necessity for acts of climate protest

Facts

On 13 January 2020, the Police Court of the Lausanne district acquitted 12 defendants (A. to L.) of the charges of trespass and offences under the Vaud Contraventions Act (LContr/VD).

The Vaud Public Prosecutor’s Office appealed against this judgment, seeking the conviction of the defendants for the same offences. The appeal hearing was initially scheduled for 22 and 24 September 2020 before the Criminal Appeal Court of the Vaud Cantonal Tribunal.

On 4 September 2020, the defendants’ counsel requested that the hearing be held in public, or failing that, that it be postponed. By decision of 8 September 2020, the cantonal court maintained a partial in-camera hearing, allowing only the presence of accredited journalists due to the health context linked to the COVID-19 pandemic. This decision was confirmed during the hearing on 22 September 2020.

By judgment of 22 September 2020, the cantonal court overturned the first-instance judgment and convicted the defendants of trespass, obstruction of an official act (art. 286 SCC) and contraventions of the Lausanne General Police Regulations. The sentences imposed ranged from fines to suspended pecuniary penalties.

The facts established by the cantonal court are as follows: on 22 November 2018, a group of 20 to 30 people, including the defendants, entered the entrance hall of a bank branch in Lausanne to protest against the bank’s investments in fossil fuels. The protesters unfurled a banner and staged a mock tennis match, partially blocking access to the counters. Despite an order to leave the premises, some of the protesters remained and had to be evacuated by the police. No assault was observed, but access to the counters was disrupted.

Considerations

1. On the legality of the partial in-camera hearing and the principle of open justice

The Court recalls that the principle of open justice, guaranteed by art. 69 CrimPC, art. 6 ECHR and art. 30 para. 3 Const., does not require a public hearing in all proceedings. Whether hearings are held in public depends on the circumstances of the case, in particular the seriousness of the facts and the need to ensure a fair trial. In the present case, the issues in dispute were primarily legal, and the facts were admitted by the defendants. The cantonal court justified the partial in-camera hearing on the grounds of the need to protect public health in the context of the COVID-19 pandemic. It allowed the presence of twenty accredited journalists, thereby ensuring broad publicity for the hearing. The Federal Court considers that this measure, based on art. 70 CrimPC, was proportionate and did not violate the principle of open justice. The courtroom used was the largest available in the canton, and the health restrictions were legitimate.

2. On the presence of persons of trust at the hearing

The defendants requested that they be accompanied by twenty persons of trust, but the cantonal court refused on account of the health measures. Art. 70 para. 2 CrimPC provides that a defendant may be accompanied by a maximum of three persons of trust, but this right is not absolute and may be limited in the event of a conflict with other interests, such as public health. The cantonal court carried out a balancing of interests and considered that the presence of additional persons would have increased the risk of virus transmission. The Federal Court considers this decision to have been justified, particularly since the defendants were represented by counsel and the facts alleged were not of exceptional gravity.

3. On the application of the defence of necessity (art. 17 SCC)

The defendants invoke art. 17 SCC to justify their actions, arguing that they were acting to avert an imminent climate danger. The Court recalls that the defence of necessity requires an actual and concrete danger, threatening an individual legal interest, and not a collective one. The danger must be imminent, i.e. likely to materialise within a very short period, generally a few hours. In the present case, the defendants did not act to avert an immediate danger threatening a specific legal interest, but to alert public opinion to climate change. Their action was not necessary to avert an imminent danger, and it did not meet the criterion of absolute subsidiarity. Moreover, art. 17 SCC applies only to the protection of individual legal interests, and not collective ones such as the environment. The Court therefore rejects the application of this provision.

4. On putative necessity and extra-statutory justifying…