‘COVID’s Choice? Criminal Trials, and the Right to Be Present, the Right to Be Tried Within a Reasonable Time and the Possibilities of Remote Participation’

Introduction

There is a legal maxim in English which says ‘justice delayed is justice denied’.¹ There is truth to this: the speed of a trial is integral to its overall fairness.² It is doubtful, however, that when proffering this maxim, its author, W.E. Gladstone, imagined the delay of justice as being caused not by intention or malignance, but by exceptional circumstance, like that of a pandemic. Whether and to what extent the COVID-19 pandemic (hereafter “the pandemic”) brought about the denial of justice, especially in the context of criminal proceedings and the right to a fair trial, will be the subject of much research in the years to come. That the pandemic challenged legal authorities’ abilities to provide prompt and fair justice cannot be questioned: in many jurisdictions, the spring of 2020 saw court proceedings halted as the world found itself immersed in a “global lockdown”.³

This special issue seeks to contribute to that research, focusing as it does on remote criminal justice and the question of whether remote trials can be fair trials.⁴ This article—‘COVID’s choice?’—is a contribution to this special issue, in both senses of the term—the thematic journal issue before you, and the “special” (i.e. particular) issue that is the question of remote, but fair, trials. Focusing on two component rights of the broad right to a fair trial, namely the right to be present and the right to be tried within a reasonable time, the article discusses the extent to which these two component rights were drawn into conflict during the pandemic, when ordinary, in-person trial proceedings were no longer possible (or at least, the “norm”). These two rights were chosen for a specific reason: they are two of the most obvious components of the right to a fair trial which were immediately affected by the pandemic.⁵ The question around which this article centres is: when the entirety of the right to a fair trial cannot be assured, where do the accepted limitations lie? What derogations (partial or otherwise), in other words, are we willing to accept to the component elements of the right to a fair trial?

The discussion presented is contextualised with empirical research on criminal trial proceedings in Belgium during the pandemic (particularly the lockdowns therein), wherein the two rights in focus were placed at especial odds with each other. The empirical research, furthermore, indicated that the two component rights under discussion were not treated equally during the pandemic—at least not from the Belgian perspective. The data presented in this article is the product of a wider (ongoing) research project, DigiRights, in which national legal and empirical studies of the “digitalisation” of defence rights are being undertaken.⁶

The article begins, in Section II, with the discussion of the right to be present, the right to be tried within a reasonable time, and the question of which (if either) ought to come first (if both cannot be fulfilled). It then moves (in Section III) to examine the current (at time of writing), albeit limited, European Court of Human Rights (ECtHR) case law on remote (online) trial participation. In Section IV, which then follows, the empirical data gathered on Belgium is presented and analysed, and the three trial “scenarios” identified—trials postponed, trials held in person but in absence of the defendant and trials held online—are discussed. Section V then brings these earlier sections together, alongside the wider scholarship, to address the question of whether remote (online) trials might not be, in certain (perhaps extraordinary) circumstances the “best available” option, before Section VI concludes this contribution with some recommendations for the future.

Before we begin with the substantive discussion of this article, a brief note on the terminology used herein. There are, as commentators have noted, many different concepts used to describe the ‘many different modalities of virtual justice.’⁷ As an alternative to traditional physical hearings or trials, “remote hearings” or “remote trials” will be used in this article, alongside the terms “online hearings” or “online trials”. The former term—remote—includes three kinds of remote proceedings: those that take place using audio-only systems (including via telephone); those that take place using videoconferencing technology (e.g. Zoom, Microsoft Teams, etc.), and those that take place “on paper” only.⁸ The latter term—online—denotes situations in which judges, legal representatives, witnesses, the accused and other parties do not gather physically at the same venue but through information technology or videoconferencing tools.⁹ In either case, the proceedings can be blended or hybrid—where only some of the parties are remote and/or online—or completely remote or online, in which all parties are physically outside of the courtroom, and few (if any) are in the same room.¹⁰ In this article, “remote” and “online” will be used interchangeably to describe any trial proceedings in which some or all of the parties were present outside of the courtroom, by means of either audio-only or audio-video communication technology.¹¹

The Right to Be Present vs. the Right to Be Tried within a Reasonable Time: Which (If Either) Comes First?

While not expressly contained in art 6 of the European Convention on Human Rights (ECHR), the right to be present has been inferred from other component fair trial rights, including the rights to a fair hearing, to defend oneself in person or with the assistance of counsel, to an interpreter, and to the presumption of innocence.¹² The ECtHR, for example, has held that the right to be present is part of the right to a “fair hearing” in art 6(1) of the ECHR, observing that ‘it is difficult to see how a defendant could exercise the rights [therein] without being present.’¹³ The accused’s presence is justified by their interest in ‘witnessing and monitoring proceedings that are of great importance to them.’¹⁴ Often included within—or alongside—the right to be present is the right to participate effectively in the trial; this includes not only the right to be (physically) present, but also the right to hear and follow the proceedings, and generally ‘to participate effectively in them’.¹⁵

The right to be present is also expressly provided for European Union (EU) Member States as a result of the Directive 2016/343, which provides, at art 8(1), that Member States ‘ensure that suspects and accused persons have the right to be present at their trial.’¹⁶ Presence, however, is a right, not an obligation.¹⁷ Accordingly, proceedings that take place in the absence of the accused are not of themselves incompatible with the right to a fair trial¹⁸—so long as, inter alia, the defendant has been adequately notified of the trial, and their defence rights, including their right to counsel and to a retrial, are safeguarded.¹⁹ A defendant can also waive their right to be present and they do not need to give reasons for this.²⁰ The ECtHR holds that an express waiver is valid where defendants inform the court of their wish to be tried in their absence, without providing reasons.²¹

The right to be tried within a reasonable time, in contrast, is expressly contained in art 6 of the ECHR, which explicitly states, at para 1, that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. Article 47 of the Charter of Fundamental Rights of the European Union (CFREU) repeats this same guarantee. The securing of proceedings “within a reasonable time” are for the prosecutor and national courts to ensure.²² While there is no predetermined threshold separating “reasonable time” from “undue delay”, the assessment of what constitutes “undue delay” will depend on the circumstances of each case.²³ In general, however, both the ECtHR and the Court of Justice of the European Union (CJEU) assesses the reasonableness of a delay by taking into account: the complexity of the case, the conduct of the defendant, the conduct of the authorities, and the level of prejudice to the defendant²⁴ as a result of the delay.²⁵

If a defendant alleges that their proceedings have been unduly delayed, the burden of proof is on the state to justify the delay; if the state fails to provide an acceptable justification or ‘simply refuses to give any reasons’, the state will generally be held responsible for the delay, and so for breaching the defendant’s right.²⁶ As with the right to be present, the right to be tried within a reasonable time can be waived. While ultimately the court retains discretion as to whether to accept a defendant’s waiver, in general it should also assure that the waiver has been given ‘willingly and knowingly’ and that it was, accordingly, ‘attended by minimum safeguards commensurate to its importance’; this includes factors such as whether a lawyer was present when the defendant waived a right.²⁷ It is an ongoing point of discussion amongst international human rights bodies whether—and to what extent—a defendant can waive their right to a trial without undue delay (within a reasonable time) by invoking another component of their fair trial rights—for example, the right to be present.²⁸

Meanwhile, while the overall right to a fair trial cannot easily be derogated, specific conditions—e.g. those given in art 15 of the ECHR—allow for derogation. Article 15(1) permits derogation of certain rights²⁹ ‘in time of war or other public emergency threatening the life of the nation.’³⁰ The proviso is that such derogation must only be to the extent ‘strictly required by the exigencies of the situation.’³¹ As it is not one of the rights exempted in art 15(2), the right to a fair trial under art 6 falls within art. 15(1) and so can be derogated if the above conditions are met. Both of the component rights under discussion—the right to be present and the right to be tried within a reasonable time—can accordingly be derogated (as a part of the whole of the right to a fair trial).

As the brief overview of these two component fair trial rights has sought to show, both are (understandably) considered fundamental components of the right to a fair trial, both of which should be enjoyed by an accused as a part of their fair trial rights. The two component rights interact with each other and to this end, may need to be balanced against the other. If both cannot be offered or fulfilled—because, for example, of a public emergency like that of the pandemic³²—which is to be given precedence? It appears from both the ECtHR’s case law and the legal scholarship that it is the right to be present which ought to be given higher priority than the right to be tried within a reasonable time.³³ This is because defendants have a right to exercise the full range of their component fair trial rights, even if—or where—doing so slows their proceedings down.³⁴ Accordingly, some delays may be justified by the need to protect other component fair trial rights of the defendant, including those that ‘give effect to the defendant’s right to be present’.³⁵ The right to be present, however, is not considered absolute, something the ECtHR and the Directive 2016/343 note. In its Recitals, the Directive states that ‘under certain conditions’, it should be possible for a decision on a person’s guilt or innocence to be handed down, ‘even if the person concerned is not present at the trial’.³⁶ This latter reasoning is perhaps what we saw deployed during the pandemic, when many EU states expressed reluctance to have in-person hearings and so turned to remote, online hearings.³⁷ The ECtHR, in the case of Fenech v Malta, made a similar observation, in the context of the pandemic altering an accused’s right to access a court (and so be present therein).³⁸ We too will now turn to consider remote (online) trial participation, from the perspective of the ECtHR, particularly the extent to which this can—or cannot—fulfil the rights to be present and to be heard within a reasonable time.

Remote (Online) Trial Participation: ECtHR Perspective

The use of remote (online) hearings, via videoconferencing, has been held by the ECtHR to not ‘as such’ be incompatible with ‘notion of a fair and public hearing’—including the right to be present.³⁹ In fact, the right to be present in court ‘should not be confused with a right of personal attendance’, for it is the latter that has the broader “scope” and so can include the accused’s participation in the proceedings by at a distance and by means of videoconferencing (for example).⁴⁰ The ECtHR has, however, imposed a number of conditions on this general statement, including that having the defendant join the proceedings online or via video-link ‘serves a legitimate aim’; that such measure remains ‘compatible with the requirements [of] due process’⁴¹; that the defendant is able to follow the proceedings, be heard without technical impediments; and that ‘effective and confidential communication with a lawyer is provided for’.⁴²

There are four judgments from the ECtHR which ought to be discussed in greater detail, for each speaks to the use of videoconferencing technology in criminal proceedings. The first is the case of Marcello Viola v Italy;⁴³ this is also the first case in which the Court specifically sought to establish the relevant principles with recourse to online hearings from the perspective of the right to a fair trial.⁴⁴ In Marcello Viola, the applicant had been sentenced to life imprisonment for Mafia-related crimes. Due to the circumstances of his crimes, his prison regime was particularly restricted from the outside world; to this end, he participated in the hearing of his appeal proceedings via audio-visual link from the prison. The applicant appealed to the ECtHR, on the basis that his remote participation had breached his art 6 fair trial rights. While noting the ‘place the right to a fair administration of justice holds in a democratic society’, and that any measures restricting the rights of the defence should be ‘strictly necessary’, the Court did not find in favour of the applicant.⁴⁵ Instead, it held that the applicant’s participation in the appeal proceedings by videoconference ‘pursued legitimate aims’ under the Convention, including the prevention of crime and compliance with the reasonable time requirement, and that the applicant was able, during the proceedings, to ‘take advantage of an audiovisual link with the hearing room, which allowed him to see the persons present and hear what was being said.’⁴⁶ He could also be seen and heard by the other parties, the judge, and the witnesses, and he had the opportunity to make statements himself.⁴⁷ The applicant’s defence counsel also had the right to be (physically) present with the applicant (i.e. in the prison) and so to confer with him confidentially.⁴⁸ Taken together, the Court found that in his participation by videoconference, the applicant had ‘an opportunity to exercise the rights and entitlements inherent in the concept of a fair trial, as enshrined in Article 6.’⁴⁹ Accordingly, no breach of art 6 was found. Shortly after Marcello Viola was decided, the ECtHR extended the principles declared in that case to first-instance proceedings.⁵⁰

Sakhnovskiy v Russia,⁵¹ decided only a few years after Marcello Viola, concerned the issue of the effectiveness of an accused’s legal representation, where the accused appears via video-link. Here, due to significant physical distances, the applicant was only able to communicate with their newly-appointed lawyer via video-link, for 15 minutes, immediately before the start of the appeal hearing. Contrasting the difference between the legal representation offered to the applicant in Marcello Viola, and in the instant case, the Court noted that the otherwise legitimate restriction on the applicant’s personal (physical) meeting with the lawyer (due to the distance) had not been compensated for by other, more appropriate means, such as the appointment of a lawyer practising in the place of the applicant’s detention. Instead, the applicant “had” to use the video-conferencing system ‘installed and operated by the State’, something the Court considered ‘that the applicant might legitimately have felt ill at ease [about] when he discussed his case with [his appointed lawyer].’⁵² In effect, the applicant was forced to choose between accepting ‘a lawyer he had just been introduced to, or … continu[ing] without a lawyer’; as a result of this (poor) dichotomy, the Court found that the applicant’s art 6 rights had been violated. Pertinently, because his defence assistance was found to be wanting, the Court did not consider it necessary to assess whether his participation by video-link had also infringed his fair trial rights. What we see in (and so glean from) Sakhnovskiy is the importance of remote participation being used sparingly, and only for a ‘legitimate purpose’. Furthermore, in reaching the decision it did, the Court sent another message: that if other fair trial rights are breached, no amount of “legitimate” and “correct” use of remote (online) participation will be able to mitigate or cure such breaches.

In Bivolaru v Romania the applicant had been offered the possibility to be questioned by the relevant domestic High Court via videoconference. The applicant, who was not physically present in Romania (he had obtained refugee status in Sweden), “knowingly refused” to be questioned by videoconference, on the advice of his lawyers, on the ground that domestic law did not allow him to consent to such a form of hearing.⁵³ He was accordingly tried in absentia by the High Court, which the applicant claimed was a breach of his art 6 fair trial rights. The ECtHR found that while the applicant had not waived his rights to be heard, the High Court of Romania’s offer to question the applicant via video-link was ‘a form of participation in the proceedings which is not, in itself, incompatible with the concept of a fair and public trial’.⁵⁴ It noted, further, that while the domestic law did not require a person who refused to consent to questioning by videoconference to justify their position, the fact remained that, in the present case, in which the applicant complained that he had not been appropriately heard by the High Court, questioning via videoconference ‘could, in the Court’s view, be an appropriate means of ensuring that the person concerned was heard directly and expeditiously.’⁵⁵ The ECtHR concluded that, inter alia, the High Court ‘made every effort that could reasonably be expected of it within the existing legal framework to ensure that the person concerned was questioned and that it cannot be criticised for any lack of diligence’⁵⁶; accordingly, despite the applicant having not waived his right to be present, no violation of art 6 was found.⁵⁷ Bivolaru, like Marcello Viola before it, shows the ECtHR not only reaffirming that remote—or “virtual”—participation is not itself incompatible with the concept of fair trial—but that the use of videoconferencing technology in (certain) circumstances is, in fact, preferable, where it can be used to assure the presence and participation of an accused.

Dijkhuizen v The Netherlands, the most recent of the Court’s judgments on this matter (Dijkhuizen was heard in 2021), follows this same line of reasoning.⁵⁸ The facts are similar to those of Marcello Viola: the applicant, Dijkhuizen, was detained in Peru on charges of money laundering related to the trade of illegal narcotic substances. At the time of his arrest in Peru, the applicant was already facing charges of illegal substance importation back in the Netherlands. His physical presence at his subsequent appeal hearing in the Netherlands was consequently impossible. Although the applicant was offered the possibility to be heard via videoconference, he declined this, and was not, therefore, personally heard at his appeal hearing. The applicant eventually applied to the ECtHR, where he claimed that his art 6 rights had been breached as a result of failures to secure either his physical or online (virtual) presence at his appeal hearing. In reaching its decision, the ECtHR accepted that the applicant was unable to return to the Netherlands to physically attend the hearing at the Court of Appeal, and it repeated that as regards participation by videoconference, which ‘is not as such contrary to the Convention’, it was incumbent on domestic authorities 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’.⁵⁹ The ECtHR found that in the circumstances, ‘also taking into account that the proceedings at issue were part of a substantial and complex criminal trial’, the Dutch Court of Appeal was entitled to substitute a hearing in which the applicant participated by videoconference—as was permitted by domestic law—for a hearing at which he could be physically present.⁶⁰ Accordingly, there was a ‘realistic option’ open to the applicant to take part in the hearing of his appeal, and the fact that the applicant’s ‘repeated and unambiguous refusal’ to participate via videoconference could not be construed as anything other than a waiver of his right to participate in his hearing, the consequences of which—an inability to appear at this hearing—the applicant had clearly foreseen.⁶¹ No violation of art 6 was therefore found.

While the ECtHR’s case law on remote participation, from the perspective of the right to a fair trial, might be sparse, and whilst there remains a silence on many of the ‘conceptual and practical issues’ which arise in this context,⁶² the Court’s case law does not, importantly, exclude the possibility of recourse to remote, online hearings. If anything, as the brief overview above shows, in some instances—such as in Marcello Viola or Dijkhuizen—it even considers remote participation to be a ‘viable alternative’ to the difficulties associated with ensuring physical presence, even where the accused-defendant has declined to partake in this option. Perhaps most surprising is the Court’s finding that a refusal to participate remotely, via videoconference, will be taken as a waiver of the right to be present and participate, where the option to participate “virtually” is indeed a viable alternative to the impossibility (otherwise) of the accused’s physical presence.

Brief mention should also be made here of the CJEU’s preliminary ruling in the case of FP and others (C-760/22), which was released just before this article was published. Here, the reference came from Bulgaria, who asked the Court whether—in the absence of (express) national law allowing the possibility—granting an accused person the right to participate online is nonetheless compatible with art 8(1) of the Directive 2016/343 (see, supra). The CJEU unhelpfully evaded answering this question in full, instead noting that as art 8(1) does not ‘preclude’ the possibility of participation by videoconference, the question was for Member States to determine with recourse to national law, as art 8(1) ‘does not govern the issue’.⁶³ The only condition the CJEU felt equipped to add was an echo of what the ECtHR has already concluded: that any rules allowing an accused to appear remotely must uphold the fundamental rights and principles of, inter alia, their right to a fair trial.

Perhaps, given the CJEU’s recent conclusion on this matter, and despite most of the ECtHR’s case law having been heard well before COVID-19 made its appearance (the exception being Dijkhuizen), it is not surprising many domestic courts seem reluctant to make use of the (arguably, obvious) permission the ECtHR⁶⁴ gives for the use of remote participation in circumstances where the accused cannot be physically present—such as, for example, because of restrictions related to public health and safety during a pandemic.

Criminal Trials in Belgium during COVID: Three Scenarios

The right to a fair trial, in all its facets, within the meaning of art 6 of the ECHR, has been recognized as a general principle in Belgium.⁶⁵ Consequently, both the right for the accused to be present at trial⁶⁶ and the right to be tried within a reasonable time,⁶⁷ apply in full. Repeating the ECtHR, the Belgian Court of Cassation has repeatedly ruled that persons who are accused of having committed a crime have the right to be present at their trial, which entails that they must be able to effectively follow and participate in their criminal proceedings, if they so desire, as well as consult with their lawyers (to whom they can give instructions), make statements and contradict on the evidence.⁶⁸ With that, the Court has also noted that the right to be present at trial is not absolute and can be validly derogated from, upon the condition that it does not affect the accused’s overarching right to a fair trial, and only if the judge precisely clarifies why it does not.⁶⁹ In their assessment, so it is accepted, the judge can take into account the right to be tried within a reasonable time.⁷⁰ Although it could be inferred from this case law that the right to be present could be limited or otherwise derogated from when it contributes to a delay in the criminal proceedings, this possibility should be treated with the necessary caution: compliance with the requirement of a reasonable time in itself cannot be considered sufficient to exclude personal presence.⁷¹ Guaranteeing the overall fairness of the procedure is, indeed, deemed to be more important than the mere avoidance of an excessive trial time, especially since the latter does not necessarily affect the fairness of the trial—the complexity of the case, the conduct of the accused and the conduct of the judicial authorities are considerations that affect what is deemed “timely” for a specific trial. As with the ECtHR, there is no clear guidance in Belgium on how the balance between the two fair trial component rights should be struck so as to still guarantee the overall fairness of the proceedings.

Despite this lack of guidance, the criminal courts had to venture into this balancing exercise themselves when the COVID-19 virus reached Belgium on February 3rd, 2020. Belgium, unlike other State Parties of the Council of Europe, decided not to invoke art 15 of the ECHR (which, to remind, permits derogations from the fair trial rights in art 6 in certain situations).⁷² Consequently, even during “Corona times” when physical gatherings and contacts were to be avoided as much as possible, the Belgian judicial authorities needed to ensure the rights of each accused to be (physically) present and to be tried within a reasonable time. The increasing risk of infection, however, required the criminal courts to adapt or suspend their normal method of operation, which almost exclusively consisted of organizing physical hearings. Our question is how the criminal courts did so, and whether this was done in a way such that the accused’s fair trial rights were safeguarded to the maximum extent possible.

At the beginning of the pandemic, the College of Courts and Tribunals⁷³ issued guidelines for the courts on how they should function in times of a global health crisis.⁷⁴ In order to reduce physical contact, the College specifically requested lawyers (literally) represent their detained clients—i.e. physically represent them in proceedings the client was now unable themselves to partake in. In addition, judges were encouraged to either replace the oral hearings by a procedure in writing, or to let the parties participate in the oral hearings via videoconference. The legislature then provided the necessary (temporary) legal basis for those extraordinary measures, which did not exist at the time. By the Law of March 27, 2020, the federal government was authorized to take measures to combat the spread of the coronavirus.⁷⁵ Within this framework, the government was more concretely authorized to adopt rules concerning the administration of justice and procedures, while ‘respecting the rights of defense of those seeking justice, the proper functioning of the courts and, in particular, the continuity of the administration of justice’.⁷⁶ In implementation of this law, on April 9th, 2020, the government promulgated Royal Decree No. 2 in which it determined which measures the civil courts could take to compensate for the lack of physical hearings, giving therein a legal basis to organize written procedures and remote hearings by videoconference.⁷⁷ On the same day it also adopted a decree specific to criminal cases which sought to avoid the physical presence of parties in criminal proceedings, as well as the transfer of detainees and other persons deprived of their liberty.⁷⁸ According to this decree, those detained or on remand were no longer allowed to appear before the chamber for the protection of society⁷⁹ and the sentencing court,⁸⁰ respectively, but had to be represented by their lawyers.⁸¹ Despite the clear instructions for those courts, the royal decrees left the criminal courts with uncertainty as to how they should try accused persons (with respect to their fundamental rights). Likewise, there was no guiding (temporary) legal provision on the basis of which they could adopt extraordinary measures, such as videoconferencing.

As none among the legislature, federal government or the Court of Cassation could provide guidance to the criminal courts, each court was forced to improvise measures themselves, as they saw fit at the time. The various measures that were adopted therefore reflect the results of the courts’ own attempts to strike a balance between the right to be present at trial and the right to be tried within a reasonable time. The question of how and why these fair trial rights were or should have been balanced against each other cannot, therefore, be answered through traditional textual analysis methods of research. It is, in fact, exactly at this moment, when ‘there are important questions in the law and about legal institutions that cannot be answered’, that empirical legal research becomes important.⁸² Accordingly, to explore the operation of the criminal courts and the “law in action” in the empirical reality at the time—being during the midst of a pandemic—empirical legal research has been carried out as part of the DigiRights Project.⁸³ The method that was used to answer the abovementioned “how” and “why” questions consisted of a qualitative research study, in which individual legal practitioners, who were active during the pandemic and who could provide the researchers access to their (memories of) experiences, were interviewed.⁸⁴

Between September and December 2023 twenty-two legal practitioners were interviewed, composed of public prosecutors, criminal defence lawyers, judges, legal interpreters and members of the cabinet working on justice digitization projects and initiatives.⁸⁵ The first persons interviewed were reached through criterion sampling:⁸⁶ the database of advocaat.be⁸⁷ was consulted and from it criminal lawyers were selected.⁸⁸ After that, many of the next respondents were reached via means of referral. Each of the legal practitioners was individually interviewed by video-link (either via Microsoft Teams or Zoom). The interview was semi-structured, giving the respondents the necessary margin to proffer their experiences while equally allowing the interviewers’ necessary guidance to maintain relevance.⁸⁹ Upon consent⁹⁰ of the respondents, all interviews were audio- and videorecorded and thereafter automatically transcribed using Rev, a transcription service.⁹¹ For the purpose of this article, however, only those interviews in which the researchers acquired additional, valuable insights into the diversity of COVID-19-measures and their underlying rationale, will be used. After due filtering, the results of the interviews with fourteen legal practitioners, composed of seven criminal defence lawyers, five judges and two public prosecutors, will be given. For an overview of these selected interviewees, see Table 1.

We began noticing that those respondents who spoke of COVID-19 in passing would mention that (in their experience) hearings were either postponed, held in absence of the accused or held online by means of videoconference technology. We realised from this that three distinct scenarios appeared to have occurred in Belgium. Following this hypothesis, the data collected from these interviews was assessed, leading to the analysis which follows.

Lessons from COVID: Remote (Online) Trial as “Best Available” Option

The (qualitative) empirical study has captured the legal phenomena during the pandemic in three categories: trials postponed, trials held in absence of the defendant and trials held online. Although the right to be present is not absolute and can be both derogated from and subjected to limitations, it became clear from the above analysis that the second scenario in Belgium (no participation of the accused at all) is the most inappropriate. As the earlier discussion illustrates, both the ECtHR’s case law and the legal scholarship suggest that the right to be tried within a reasonable time ought not to be given higher priority than the right to be present. This position is assisted, moreover, by both the findings of the empirical study conducted and the judgment of the Belgian Constitutional Court, which held that excluding participation is excessively far-reaching. This, however, does not mean that the full participation of the accused has to be guaranteed, regardless of whether this is detrimental to their right to be tried without undue delay. The ECtHR, in its case law—which has been repeated by the Belgian Court of Cassation—ruled that the reasonable time requirement can indeed be used to justify limitations to the right to be present, although this requirement alone may not be sufficient.

The pandemic gave rise to a particular set of extraordinary circumstances, circumstances which in of themselves were recognised as a legitimate reason by which a derogation from, inter alia, the right to be present could be justified. As a consequence of this, remote (online) hearings became a legitimate possibility by which neither the reasonable time requirement, nor the participation of the accused need to be (entirely) excluded or disregarded. As some of the judges interviewed have astutely observed, and as confirmed by the Belgian Constitutional Court, imperfect participation—by means of videoconference—is still better than no participation at all. This seems to be the ECtHR’s perspective too: when faced with the impossibility of guaranteeing the physical presence of the accused, as earlier discussed, remote participation is a preferable alternative.

Based on the legal and empirical analysis above, in certain circumstances it is arguable that remote hearings are thus more fairly able to balance the two fair trial rights. Nevertheless, most of the empirical research respondents in Belgium indicated that they are not willing to settle for “imperfect participation” but prefer to pursue “perfect” participation—even where this presupposes disregarding the reasonable time requirement. In Belgium, the reluctance towards remote (online) hearings is, we suggest, largely a result of the lack of a legal framework and the potential negative consequences of videoconferencing on the accused’s ability to conduct confidential one-on-one consultations with their lawyer, follow the proceedings, and to be heard.¹²² These concerns are legitimate; as the ECtHR has itself stated, there are minimum conditions that ought to be fulfilled if remote (online) participation is to meet an accused’s fair trial rights. To remind, such participation needs to: serve a legitimate aim, ensure effective access for the accused to the means of online communication, including that they can see the persons present, hear what is being said, can themselves be seen and heard by the other participants, and can otherwise participate in the proceeding without any technical impediments, and finally, to offer the possibility of effective and confidential communication with a lawyer.

Although the lack of legal framework did not prevent greater use of videoconferencing technology in Belgium criminal proceedings, we nonetheless suggest the possibility of remote (online) participation should be given a legislative context. A legal framework which therein clearly sets forth the boundaries by which the accused’s overall right to a fair trial will be assured is needed. This need is something that Belgium appears to have acknowledged: recently, the Belgian parliament adopted the Act of April 25th, 2024 on the organisation of hearings by videoconferencing in the context of judicial proceedings.¹²³ This act was, however, preceded by a difficult trial and error process: prior to its introduction, two initiatives were likewise taken to introduce the possibility of using videoconferencing technology for criminal proceedings into the Belgian Criminal Code.¹²⁴ After heavy criticism by, amongst others, the Order of Flemish Bars,¹²⁵ the chapters on videoconferencing in criminal cases were completely left out of the final versions of those initiatives that eventually gained binding force.¹²⁶ Bearing in mind the criticisms that the earlier initiatives faced, the cabinet of the Minister of Justice has tried to better safeguard the rights of defence with this latest attempt (of April 2024).¹²⁷

In this regard, the Act of April 25th, 2024, first of all, adheres to the exceptional character of remote (online) hearings. Since the ECtHR ruled that only good, legitimate reasons can justify the accused’s remote participation, the Act prescribes the situations in which an online hearing can be organized: in case of another epidemic emergency, when there are objective indications of a serious and concrete risk for the public safety, and upon the consent of the accused.¹²⁸ In any case, it is crucial that the accused’s right to legal assistance and right to effectively participate in the proceedings are safeguarded.¹²⁹ Secondly, to ensure the accused’s right to legal assistance, the Act explicitly states that the accused must be enabled to effectively conduct confidential private consultations with their lawyer.¹³⁰ The text of the Act itself, however, does not say how this exactly should be guaranteed. According to the travaux préparatoires, the lawyer and accused ought to be able to enter into a separate space within the videoconferencing system where they can talk privately, or be otherwise able to talk over the telephone; in either case, the online hearing should be suspended for the duration of their private conversation.¹³¹ It is worth noting, however, that the ECtHR has questioned the suitability of so called “break-out rooms” within a “state-run” videoconferencing system as these can create (justified) distrust on the part of the accused regarding the confidential nature of communication.¹³² This issue still needs to be addressed properly by the Act, something that has also been suggested by the Council of State and acknowledged within the travaux préparatoires of the Act.¹³³

Thirdly, the Act stipulates that the accused persons should be enabled to follow the proceedings, without technical difficulties.¹³⁴ This requires, first of all, that the accused can see and hear everyone present. As a result of the broader digitization project underlying the Act, each court has now been equipped with 360°- and 180°-degree cameras, providing the accused (and anyone else participating remotely) a full picture of the courtroom and everyone present therein.¹³⁵ Together with the wireless speakers that are distributed among the relevant actors in the courtroom, the accused should be able to (adequately) follow the trial.¹³⁶ This, of course, only applies on the condition that no technical difficulties occur; this is the second condition. The software that is (currently) being specifically developed for remote (online) hearings will allow the court to detect technical difficulties beforehand. Before the accused can enter the “virtual courtroom”, the network connection, audio and video will be tested and any issues will, accordingly, be detected.¹³⁷ Detecting any technical problems also seeks to ensure that the accused persons themselves can be heard and seen properly, which is the last requirement of the third condition. If technical difficulties nonetheless unexpectedly occur, the remote (online) hearing will be suspended. If the difficulties continue to arise, the judge must postpone the hearing and can decide that (instead) the next time the accused must appear in person.¹³⁸

Despite the progress that has been made so far, there are still some elements that the cabinet of the Minister of Justice need to give greater attention to, like the confidentiality of the client-lawyer communication. Although the necessary safeguards, as required by the ECtHR, are present in the text of the Act, it is still not entirely clear how they will come to operate in practice, and whether they will reach their desired effects. An additional difficulty with acts like these—that aim to change the “status quo” by introducing online hearings—is that they will never be completely free of criticism: simply because online hearings cannot guarantee “perfect participation”.¹³⁹ One must, however, not lose sight of why remote (online) hearings were organized during the pandemic in the first place: well-knowing that it cannot always achieve perfect participation, videoconferencing was nevertheless used ‘to ensure the continuity in the administration of justice in a context where distance rules prevailed’.¹⁴⁰ If, therefore, the circumstances are such that the physical presence is difficult to procure, remote (online) hearings ought to be a viable alternative which is given due consideration. It is for this reason we encourage the embedding of the possibility to participate remotely in a concrete and coherent legislative framework, such as that which has, finally entered into force as of September 1st, 2024, in Belgium.

Conclusion and Future Recommendations

As one legal commentator aptly describes it, the developments of the pandemic were ‘a huge unscheduled pilot, a great experiment in the use of a variety of technologies in our courts’; they may have been inspired by the need to keep the court services afloat, but they ultimately also cast light on ‘possible futures for [the] courts.’¹⁴¹ The pandemic affirmed what some—such as the ECtHR—have already acknowledged: that there is a time and place for remote (online) proceedings, and so remote (online) participation by the accused. With the pandemic still a fresh memory, now is a pertinent moment to take the lessons learned therein: we, as the legal community, should seek to ensure how remote (online) hearings can be harmonised with the domestic rights and safeguards currently offered for physical participation.¹⁴²

Focusing on two of the component rights of the right to a fair trial, namely the right to be present and the right to be tried within a reasonable time, this article has discussed the delicate balance that must (always) be struck between these two component rights, most especially during extraordinary circumstances such as those of the COVID-19 pandemic. Using Belgium as a case study, as well as the results from an empirical study undertaken in this jurisdiction, the ways in which these two component rights can be—and were—(improperly) balanced were demonstrated. Belgian criminal proceedings had three “scenarios” occur during the (especially initial) months of the pandemic: trials were postponed (so giving the right to be present greater priority), trials were held in person but in absence of the defendant (so giving the right to be tried within a reasonable time priority) and trials were held remotely, online (so balancing, albeit imperfectly, the right to be present with the right to be tried within a reasonable time).

Given Belgium’s unfamiliarity with virtual justice, most Belgian courts made the decision to ensure the accused their right to be physically present at trial, even if this would mean that the trial would be postponed to an uncertain moment in the future. From one perspective, such decisions were sensible, as the right to be tried within a reasonable time should not be given greater priority than the right to be present—as also follows from the legal scholarship and ECtHR’s case law. Such conclusions, however, are less self-evident when the digital possibilities offered by modern technology, which could have provided courts with a compromise between the two fair trial rights, are accounted for. Here, the pandemic—together with the reasonable time requirement—could have justified a derogation from the right to be (physically) present, and therefore, could have justified remote (online) hearings.

Interviews with defence lawyers revealed that the absolute preference for physical presence is prompted by fear of the ‘imperfect participation’ that virtual presence is perceived to offer—in contrast to the alleged ‘perfect participation’ that physical presence is said to guarantee. This fear, however, should not withhold, from an accused, the possibility of exercising both component fair trial rights to the maximum extent possible. Indeed, the empirical study showed that providing the accused with an additional (perhaps ‘compromise‘) option to participate online also removes (or mitigates) any pressure they may feel to “give up” one of their rights (which most likely leads to a trial held in absentia).

Nevertheless, the lawyers’ fears should be taken seriously to the extent that they highlight a number of the inevitable differences between videoconferencing and physical presence. If remote (online) hearings are presented as the best available option for safeguarding both component fair trial rights, it must be assured that videoconferencing can, indeed, meet the requirements of art 6 ECHR. As a condition for videoconferencing to do so, there must, therefore, be a clear legal framework that regulates its use, as well as a technical infrastructure that allows the accused to exercise both their right to participate, as well as their right to effective and confidential legal assistance.

As many scholars have noted, we need to learn from the pandemic and from the crises it gave rise to. It is not desirable that ‘democracy be locked down for months’: we need to value the difficult experiences of (especially) 2020 and use it to enforce ‘the ordinary rule of law in our democratic societies’—even in exceptional situations.¹⁴³ Legislatively legitimizing, and so ensuring, videoconferencing in court proceedings could effectively contribute to such a goal.¹⁴⁴ The ECtHR has, as discussed, already outlined the minimum conditions that ought to be fulfilled if remote (online) participation is to meet an accused’s fair trial rights. These conditions, namely that the remote participation serve a legitimate aim; ensure effective access for the accused to the means of online communication, including that they can see the persons present, hearing what is being said, can themselves be seen and heard by the other participants, and can otherwise participate in the proceeding without any technical impediments; and offer the possibility of effective and confidential communication with a lawyer, provide just that—a minimum standard by which remote (online) proceedings, and so participation, might be both assured and, pertinently, meaningful for the accused or defendant.¹⁴⁵ While by no means the first country to consider introducing legislation to this effect, the adoption of the Belgian Act on videoconferencing is a positive step in this direction, one that we encourage other jurisdictions, who lack the requisite legislative parameters for remote proceedings, to consider following.

We are increasingly living in a digitised age; if nothing else, the pandemic (perhaps a little too starkly in some cases) revealed the inadequacies of those justice systems reluctant to adopt—or adapt to—digital practices.¹⁴⁶ For better or worse, the pandemic forced many jurisdictions to cross the Rubicon into digitalization. Now that the acute phase has passed, and life has largely returned to many of its “pre-COVID” patterns, the steps taken towards digitised justice ought not to be retracted. Instead, without the urgency of the pandemic forcing undesirable dichotomies of choice, there is the space and time to develop legislative policies which allow for remote and online participation in criminal proceedings which ensure fair trial rights are upheld. COVID-19 propelled many justice systems into the future; we should do our utmost to keep them there. For while justice delayed may be justice denied, so too is justice which remains inflexible, unadaptable and too readily rooted in the past.

Funding Information

This article and the research carried out therein are a part of the DigiRights Project, funded by the European Commission’s Justice Programme (JUST) 2021–2027 (Project No. 101056667).

Competing Interests

The authors have no competing interests to declare.