by Anna Madarasi, judge and a former spokesperson of the Metropolitan Court of Budapest*
[This blog is part of a series on the pandemic. The introduction to the series can be found here.]
Online hearings are on the rise across the world. In a significant number of European countries, the use of online tools in court hearings for civil and criminal law procedures were introduced even before the pandemic, although in different ways and extent. However, the use of online hearings has always been controversial. With the outbreak of the Covid-19 pandemic, the courts almost everywhere in the world started closing doors to physical presence and looked for alternative solutions to move the cases forward. It quickly became obvious that an extension of online hearings was necessary, as judicial breaks and postponements seriously affected the right to a fair trial within a reasonable time. In many countries where the procedural laws already introduced the concept of remote hearings, and the communication technology tools were developed, online hearings practically became the general rule, including many EU Member States, such as Sweden, Austria, Italy, France, and Hungary. In the countries that had not yet introduced dedicated remote justice tools, the court systems required to deploy tools such as Teams, Skype, Zoom, Google Hangouts or WebEx to cope with the emergency, and to use email communication systems for the exchange of files and documents. In some European countries, such as Switzerland, Great Britain or San Marino, online tools in court proceedings were introduced during the pandemic for the very first time.
Owing to the extraordinary rules introduced during the pandemic, the members of the justice system all around the world gained a lot of experience in a relatively short time regarding the use of online hearings. For example, by examining the statistical data of Hungary’s largest court, the Metropolitan Court of Budapest, and the related district courts, the number of remote criminal court hearings almost tripled since May 2020. Evaluating the experiences of the pandemic, the European Commission presented in December 2020 a package of future initiatives in its communication on the digitalisation of justice. As one of the main objectives for the EU, the Commission set the further acceleration of the digitization of justice and the further strengthening of the use of digital tools in court proceedings. On one hand, this supports the Member States developing the use of digital tools within the national justice system to ensure its functioning to the benefits of the citizens and economic actors. On the other hand, digital tools can help effective cooperation between Member States in cross-border matters. This objective emphasizes the importance of online hearings, and through the development of technical tools includes the possibility that the use of online hearings becomes the general rule. In a survey among the attendees of the online E-justice Conference organised by the German Federal Ministry of Justice on December 8th 2020, 70% of the participants replied that in three years from then, video-hearings would be the general rule all over Europe. Efforts towards the enhanced used of technologies in judicial systems are far from being an exclusive EU prerogative. In the United Kingdom, for instance, a digital reform programme in justice and the courts is well underway.
The digitalization of justice has undoubted advantages in terms of cost reduction, sustainability, speed, and effective witness protection. However, it is worth examining the impact of the legislations and measures introduced during the pandemic on the right to a fair trial, to develop a better understanding of the way the judicial system can function within the context of the online trial. Specifically, it is necessary to analyse whether the possibilities created by the extraordinary rules are suitable to become the ordinary rules and how this affects the requirements of the right to a fair trial under the European Convention on Human Rights (ECHR, or the Convention).
The right to a fair online trial in the case law of the European Court of Human Rights
Examining the institution of remote hearing from the point of view of the case law of the European Court of Human Rights (ECtHR or Court), it is important to emphasise that Article 6 ECHR includes the right to a hearing. Accordingly, the parties involved in the court proceedings have the right to have their case decided on a hearing held by a court. To participate in the hearing is part of the right to a hearing because the right to an oral hearing and the principle of immediacy cannot apply otherwise. Interpreting the provisions of the Convention, the fact that the text of Article 6 does not explicitly mention the “oral” clause is irrelevant, and the same is true for the principle of immediacy. According to the case law of the ECtHR, an essential element of a fair criminal proceeding is that the accused has an entitlement to have his case heard, with the opportunity to give evidence in his own defence, hear the evidence against him and examine and cross-examine the witnesses (Case Talabér v. Hungary, 37376/05). Also, an important element of fair criminal proceeding is the possibility of the accused to be confronted with the witnesses in the presence of the judge who decides the case, because the observations made by the court about the demeanour and credibility of a witness may have significant consequences for the accused. Public and oral hearings are a basic requirement in civil cases too, and the principle of immediacy also applies in civil proceedings, although less strictly. Moreover, in the case law of the ECtHR the right to participate in the proceedings overlaps with the right to be present at the trial. In both civil and criminal cases, the parties and the accused have the right to participate effectively, which means that they receive all possible information about the procedure, and have the right to hear, see and follow the proceedings and participate effectively in them. This requirement is particularly important in the case of online hearings.
The principle of the publicity of trials is another key element of the right to a fair trial, and it is linked to the right to an oral hearing. Publicity means that court hearings must be open to the public and not only the procedural actors. Anyone can be present as an audience or as a representative of the press, which includes reporters for the electronic media. The Court emphasized in several decisions that both in civil and criminal cases the publicity of trials is one of the basic requirements of a fair trial. In all cases, at all stages of a procedure and in all kinds of procedures, the public protects the participants against the administration of justice in secret with no public scrutiny. Public hearing contributes to the maintenance of confidence in the courts and helps to make the administration of justice “visible”, which on the other hand fosters the holding of a fair trial.
There were many examples in Europe during the pandemic when the online hearings were streamed on the internet to provide the possibility of public control, but this solution raises additional questions concerning other fundamental rights. Providing the public control in this way completely transforms the concept of court publicity and allows anyone to make video and audio recordings of the trial, and to get to know what was said at the hearing, which may affect the presumption of innocence guaranteed in Article 6(2) ECHR, the right to privacy guaranteed in Article 8 ECHR, and may also affect the fairness of the evidentiary procedure.
The requirements set in Article 6(3) ECHR are specific guarantees comparing to Article 6(1), related to criminal proceedings, and must be interpreted in this context. They are elements of the wider concept of the right to a fair trial in Article 6(1) and because of this the ECtHR commonly decides cases based on Article 6(1) and the relevant specific right in Article 6(3), or based on Article 6 as a whole. The right to effective protection, the rights related to the examination of witnesses and the right to interpretation should be examined in connection with online hearings.
Due to the short time that has passed since the abovementioned expansion in the use of online hearings during the pandemic, to date, there is no ECtHR case law. However, there are some earlier decisions, in which the Court sought to establish the relevant principles on recourse to online hearings from the perspective of the right to a fair trial.
In Marcello Viola v. Italy, the applicant was sentenced to life imprisonment for crimes committed as a member of the Italian mafia and, because of this, he was subject to special prison regime limiting his contact with the outside world. In the proceedings before the ECtHR, the applicant alleged a violation of his rights guaranteed by Article 6(1) and (3) by the fact that he was only able to participate by video conference in the appeal hearings of the criminal case against him. The Court emphasised in its decision that in the interest of a fair criminal process is of capital importance that the accused could appear in person, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim and other witnesses. The defendant cannot exercise his rights provided in Article 6(3) without being present in the hearing. According to the Court it is not in dispute that Article 6, read as a whole, guarantees the right of the defendant to participate effectively in the criminal trial. This includes that they must be given the opportunity to properly hear and follow the proceedings. The fairness of the procedure as per Article 6(3) also requires that the defendant has the possibility to communicate with his advocate confidentially, out of hearing by a third person. But the Court emphasised that the personal appearance of the defendant does not take the same crucial significance for an appeal hearing as it does for the trial hearing. The Court pointed out that any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice, then that should be applied.
Based on the above-mentioned reasons, the Court affirmed that while the defendant’s participation in the proceeding by video conference is not contrary to the Convention as such, it is incumbent on the competent court to ensure that recourse to this measure in any given case serves a legitimate aim and that the arrangements for the giving of evidence are compatible with the requirements of respect for due process, as laid down in Article 6 of the Convention. In Marcello Viola the Court eventually found that the applicant did not suffer any disadvantage as compared with the other parties to the proceeding as he had an opportunity to exercise properly the rights and entitlements inherent in the concept of a fair trial.
In the Asciutto v. Italy, the Court extended the above detailed opinion to the first-instance court proceedings too. In Golubev, Shulepov, Grigoryevskikh and Sakhnovskiy v. Russia the Court examined the online participation in a court hearing from the perspective of a special requirement of the right to a fair trial, the right to an effective defence. It should be noted that the principles laid in Marcello Viola are currently also applied in the context of civil cases. However, the case law of the Court is generally more lenient regarding the guarantees of personal presence and oral hearing in civil than in criminal cases.
In sum, remote online participation in court hearings is not contrary to the Convention, and recourse to online hearings in any case must be based on good reasons and serve a legitimate aim and any restrictions on the due process guarantees must be compensated for by other means. In the case of a defendant or a party participating in a court hearing online, it is a basic requirement that they must be able to have effective access to the means of online communication and participate effectively in the hearing. Effective participation means access to the electronic device and participation without any technical impediments: the defendant must see the persons present and hear what was being said and be seen and heard. In the Court’s case law, it is of particular importance to ensure effective and confidential communication between the defendant and their lawyer.
The effect of the extraordinary regulation on the right to fair trial in Hungary
In Hungary, the government ordered an extraordinary judicial break with the outbreak of the pandemic. This provided the legislator the opportunity to introduce an emergency regime concerned with the procedural laws that moved forward the cases and protected the right to health of the participants of the trials. Most of these emergency procedural measures were effective until June 1, 2022.
During the pandemic, the emergency measures in civil procedures permitted the use of written process in litigation more widely and online hearings practically became the general rule. In criminal procedures the use of electronic devices was significantly simplified and this way the general character of online hearing was strengthened.
According to the Code of Criminal Procedure, the court normally orders an online hearing ex officio or upon request, but the extraordinary rules regarding the use of online hearings have significantly narrowed the discretion of the authorities involved in criminal proceedings, including the courts too. During the state of emergency, if the personal presence at the court would have violated the emergency sanitary measures, e.g. the participants could not keep the obligatory social distance in the courtroom because of their large number, the hearing had to be postponed as a general rule, and if this was not possible, then participation in the hearing had to be ensured online. Even if the personal presence did not violate the sanitary measures, the court hearings had to be hold primarily online. For a shorter period, according to a temporary order, online hearings became expressis verbis the ordinary rule.
The extraordinary rules required the general use of online hearings without the consent of the accused. Replacing in-person hearings with remote communications is especially problematic when such substitution is imposed (statutorily or pursuant to a court decision) without the parties’ consent. Securing consent is especially important when it comes to the use of video conferencing platforms for hearings where the physical presence of the person concerned is traditionally considered crucial, for example preliminary hearings, hearings related to evidence gathering, and those where closing arguments are presented and discussed. In several national systems, the use of video conferencing in domestic criminal proceedings is normatively subject to the parties’ agreement. However, it appears that only in some EU member states is the suspect’s consent for video conference-enabled hearings a necessary requirement. Currently, there are no precise rules or streamlined guidance at EU level on this specific yet crucial matter. In the Hungarian system if the accused fails to agree with the remote hearing, he can request the court to hold a personal hearing and can appeal against the court’s decision. But the extraordinary rules eliminated the possibility of this legal remedy.
In sum, even if the extraordinary rules expressis verbis did not order the online hearing as a general rule but the legislator practically transported ‘online hearings by necessity’ to a context of online hearings in the ordinary state of affairs and the judges did not have the possibility to consider holding a personal hearing or order an online hearing, the only decision they could make was to postpone the hearing. Judges were not free to consider the circumstances of the case and the guarantees of the right to a fair trial and could not apply a necessity-proportionality test regarding the requirements of the right to a fair trial, namely the right to a hearing, the elements of the right to defence, and the right to a trial within a reasonable time. The extraordinary rules clearly prioritised online hearings over fair trial requirements as developed by the ECtHR. This was also confirmed by the provision that did not provide the defendant the opportunity to appeal against the judge’s decision.
During the pandemic the main purposes of the use of online hearings was to speed up the procedures and to ensure the hearing within a reasonable time, but compliance with the time criteria should not cause a disproportionate violation of other guarantees of the right to a fair trial, as the ECtHR pointed out in several cases. While it is conceivable that the Court would be more flexible when evaluating the collision of the right to life and health and the guarantees of the right to a fair trial within the context of online hearings during the pandemic, it is important to highlight the importance of the case-by-case decision by judges. Even in an extraordinary situation holding an online trial must be based on the examination of the circumstances of the specific case and ordered by a reasoned judicial decision, after a necessity-proportionality test was made. Regarding this, it is worth considering the decision of the French Conseil d’Etat on February 15, 2021, which declared the relevant emergency provisions unconstitutional as they generally authorised the use of video conferencing in criminal proceedings without the consent of the parties and without making this option dependent on any statutory conditions or subject to any specific criteria.
New regulations based on the experiences of the extraordinary regulation
I want to briefly demonstrate that the online hearings are here to stay referring to an amendment of the Hungarian Code of Criminal Procedure entered into force on March 1, 2022. This amendment introduces the possibility of the ‘simplified online presence’ in the criminal procedure. According to the communication of the Minister of Justice, the amendment is based on the experiences of the extraordinary legislation and the feedback of the stakeholders. The essence of the new institution is that online presence can be done not only through the official system installed in the courtroom but through any personal device from anywhere and any online application can be used.
In the summer of 2020, rules on e-trials in the cases of claims for compensation of damages caused by crimes or for grievance fee, a ‘speedy trial’, entered into force. In this type of civil cases the general rule is to hold an online hearing to avoid the secondary victimization of the plaintiff (who was the victim of a crime). Regarding the online hearing as a general rule prescribed by law, a civil judge of the Metropolitan Court of Budapest recently turned to the Constitutional Court and asked if the above-mentioned regulation is in accordance with the requirements of a fair trial.
There can be no doubt that online hearings have many advantages in court proceedings, but their use is marked by many uncertainties and several questions must be answered in order to ensure their appropriateness for future proceedings. On the one hand, video conferencing must meet the privacy, data protection and information security standards required by the sensitive and confidential nature of the information and communication shared in the context of judicial proceedings. On the other hand, the use of video conferencing cannot compromise the right to a fair trial. This right is absolute and while composed of several rights that on their own and under specific conditions may be remediable, it cannot be derogated in ways that make any procedure as a whole unfair. It is important to stress that even in exceptional circumstances the use of communication technologies in court proceedings should only be allowed in demonstrably necessary and proportionate ways, which reflect the specific characteristics of the individual case. Therefore, it must be subject to a case-by-case assessment by a competent judicial authority. Such assessment should be based on a substantive analysis of the need of the use of remote hearing and the compensating measures to counter-balance any prejudice to the relevant party. In sum, there are limits to the recourse to online hearings from the perspective of the right to a fair trial, and this clearly does not support the transposition of online hearing as an extraordinary rule into a context of online hearing as a general rule.
*Dr. Anna Madarasi is a judge and a former spokesperson of the Metropolitan Court of Budapest, co-founder and board member of Res Iudicata Association of Judges, LL.M of juvenile justice. She is a PhD candidate at the Doctoral School of Law of Eötvös Lóránd University in Budapest, her PhD investigates the right to a fair trial, especially the principle of open justice.