During the COVID-19 pandemic courts in many countries started to use video hearings to interrogate witnesses, examine evidence or to conduct an entire trial online. Questions arose as to whether the online hearings align with the human rights guaranteed by the European Convention on Human Rights.
Even before the pandemic, legal frameworks of some European countries allowed witnesses to be questioned by judges via video hearings. Such laws were mainly passed for safety reasons. For example, Italy was one of the first European countries that used video hearings during the Mafia trials in the 1990s, so that the protection of witnesses was enhanced and the chance of the accused escaping during transfer to the court was reduced.
Acceleration of the use of online hearings
Some constitutional courts have been critical to the use of video hearings. For example, the Belgian law allowing the use of video hearings (without the consent of an accused) for the deliberation of the detention of an accused was repealed by the Belgian constitutional court in 2018. The constitutional court ruled that the law was in breach of the European Convention on Human Rights (“Convention”) because there were no preconditions under which a judge could order a video hearing.
According to Anne Sanders, the pandemic accelerated the use of remote hearings (i.e. hearings without any participant present in the courtroom) in many European countries. In some countries, laws regarding video hearings were enacted for the first time (e.g. in Switzerland and the UK). In others, the legislation allowing the use of video hearings was expanded (e.g. in Austria and France).
As more and more courts are using online hearings in practice, questions arise as to whether video hearings are in accordance with human rights, especially with regard to the right to a fair trial and the right to a public hearing.
Case law of the European Court of Human Rights
Although the European Court of Human Rights (“ECtHR”) has not yet dealt with online hearings specifically in connection to the COVID-19 pandemic, it has already expressed several views in the past on the use of remote hearings with respect to the right to a fair trial which is guaranteed by Article 6 of the Convention. These cases can therefore serve as a guide for courts and legislators regarding the question, under what conditions is the use of online hearings in accordance with the Convention?
Arguably, Marcello Viola v. Italy is the best known judgement concerning video hearings considered by the ECtHR. The complainant in the case was accused of murders and mafia membership. The entire appeal procedure took the form of a video conference, which, according to the complainant, was contrary to his right to a fair trial.
Nevertheless, the ECtHR ruled that an accused does not have a right to participate in the trial by being present in the courtroom. Therefore, the participation of the accused in a hearing held by video conference is not in itself a breach of the Convention. International and European law contains several instruments enabling, for example, the examination of witnesses via remote hearing, therefore, not all uses of video conferences violate the right to a fair trial.
According to the ECtHR, it is crucial that the use of a video hearing in each case must have some legitimate aim (e.g. public safety) and the manner in which it is carried out must be in accordance with the Convention. For example, it must be ensured that the connection is stable during the trial, that the accused can consult his/her lawyer privately during the video hearing and that the accused and their lawyers can ask witnesses questions and make statements.
In the case of Grigoryevskikh v. Russia, the ECtHR reiterated that Article 6 of the Convention means the accused has a right to physically be in the courtroom during the trial. The participation of the accused may be guaranteed by the use of video conference. For the ECtHR, it is key that the accused is heard by a court during the trial and that he/she can adequately hear and observe the entire proceeding (i.e. in a good quality).
It is clear from the ECtHR case law that the use of video hearings is, under certain conditions, in accordance with the right to a fair trial. However, some aspects of video hearings have not yet been commented on by the ECtHR.
The issue of public access to remote courts or the questions regarding the right to privacy in the case of online hearings remain unresolved. For example, in Germany, judges can conduct video hearings, but they still must be physically present in the courtrooms, which are open to the public, while witnesses and parties of the trial use video conferencing tools.
In contrast, in Norway and the UK, it is possible to live stream hearings of cases that are “in public interest.” In such instances, however, questions arise regarding the right to privacy of the accused and of other participants in the trial (e.g. witnesses). It will therefore be interesting to follow the ECtHR’s judgements as cases regarding video hearings during the pandemic reach the court.
Cour Constitutionnelle, Judgment no. 76/2018, 21 June 2018 (https://www.const-court.be/public/f/2018/2018-076f.pdf).
ECHR, Marcello Viola v. Italy, Application no. 45106/04, 5 October 2006 (http://hudoc.echr.coe.int/eng?i=001-77246).
ECHR, Grigoryevskikh v. Russia, Application no. 22/03, 9 April 2009 (http://hudoc.echr.coe.int/eng?i=001-92105).
Sanders, Anne (2020). Video-Hearings in Europe Before, During and After the COVID-19 Pandemic. International Journal for Court Administration 12 (2) (https://www.iacajournal.org/article/10.36745/ijca.379/).
Digital Camera, author: PhotoMIX-Company, 16 February 2018, zdroj: Pixabay, CC0, edits: cropped.