Resilience of the judicial system in the post-Covid period : The constitutionality of virtual court hearings in the light of the COVID-19 pandemic

Chronowski, Nóra and Szentgáli-Tóth, Boldizsár and Bor, Bettina (2023) Resilience of the judicial system in the post-Covid period : The constitutionality of virtual court hearings in the light of the COVID-19 pandemic. HUNGARIAN JOURNAL OF LEGAL STUDIES, 64 (3). pp. 413-434. ISSN 2498-5473

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Abstract

During the 2010s, technological development created the opportunity to hold online hearings, when the parties are physically distant from each other, when their personal appearance would entail significant threat to them, or when external circumstances would impose additional barriers for interested stakeholders to appear in the courtroom. As a consequence, amongst others, the Belgian Constitutional Court heard a case concerning the constitutionality of such trials, and rejected this new form of judicial operation due to numerous constitutional concerns. Nevertheless, the context of such controversies changed significantly during the pandemic, and in the light of the public health risks several judicial bodies decided to continue most of their operations through digital means. As a result, the holding of numerous online trials was ordered. Obviously, losing parties often submitted remedies against the incorporation of these platforms into judicial work by claiming the violation of their right to fair trial. For instance, the French Constitutional Council, the Spanish Constitutional Tribunal, as well as the Supreme Courts of Austria, Norway, Costa Rica and India assessed the constitutionality of these trials during the public health emergency, and in most of the cases, the application of online hearings was upheld. Bearing in mind this tendency in the relevant case law, one should argue that the rapidly evolving technological landscape requires the reconsideration of our attitudes towards online hearings: it should be clarified which grounds are acceptable justifications for ordering online trials during ordinary periods, and how the analysis is affected by unforeseen extra-ordinary circumstances. Online, or partly online proceedings may provide greater flexibility for both the court and the parties, and could also support the efficiency of judicial work, however, the main fair trial safeguards should be maintained. Our contribution will conceptualize this issue, and will provide a deeper understanding of the constitutional implications of remote trials.

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