The public health restrictions imposed during the COVID-19 pandemic in the European Union accelerated the use of digital technology for remote criminal hearings, which generated substantial benefits in the efficiency and timely processing of criminal cases, also lowering the costs for everyone involved. At the same time, these novelties posed significant risks for such crucial procedural rights as the principles of presumption of innocence, the right to a fair trial and to an effective remedy, as well as the right to a legal assistance - captured by the Constitutions of the vast majority of the EU Member States.
The multilayer structure of European Human Rights Law adds complexity to the overall situation, as these States (1) must navigate a complex web of legal obligations deriving from their participation in the Council of Europe and in the European Union and (2) shall comply with the requirements stemming from the case-law of two European Courts (ECtHR/CJEU).
In XX, the Luxembourg Court provided its first cautionary reaction to such challenges brought by the Coronavirus pandemic as the need in the physical distancing and hence the lack of possibility to organize the traditional courtroom hearings. At the same time, the EU Member States had to consider the previously formed body of the CJEU’s jurisprudence based on Title ‘Justice’ of the Charter of Fundamental Rights of the European Union (Johnston, Alassini, WebMindLicenses).
Moreover, since all the EU Member States remain simultaneously the European Convention on Human Rights signatories, the national judicial authorities are also bound by the voluminous case-law of the Strasbourg Court. The ECtHR (Colozza, Grigoryevskikh, Jallow) also prominently developed the proportionality tests (potentially) applicable to the area of remote hearings, which underline the need to guarantee the effective participation of the parties in the criminal proceedings.
Given this background, this presentation aims to address if and how the CJEU/ECtHR balancing tests could affect the practices on remote criminal hearings in the EU Member States, in order to make suggestions for greater coherency in application of the pandemic restrictions within this multilayer legal framework (CoE, EU and the national laws and policies).
Nasiya Daminova, Postdoctoral Research Fellow (‘Just Recovery from Covid-19? Fundamental Rights, Legitimate Governance and Lessons Learnt’ (‘JuRe’) project), University of Tampere, Faculty of Management and Business. LLM in European Law (Stockholm University, 2014), PhD in Transnational and Comparative Law (Scuola Superiore Sant'Anna, 2018).