The Right to a Fair Online Hearing

Abstract

Abstract With the outbreak of the Covid-19 pandemic, the courts almost invariably (although to different degrees) started closing doors to physical presence and a new interest in remote forms of the administration of justice—notably online hearings—has emerged from the margins of legal research and practice. This article focuses on online hearings as the most critical aspect of the remote administration of justice, which still remains, theoretically and empirically, a largely unexplored area of legal process. It discusses the conceptual problems of online hearings from the perspective of European human rights law, notably Article 6 (the right to a fair trial) of the European Convention on Human Rights. On the basis of this assessment, the article identifies the limits to the use of online hearings flowing from the perspective of the right to a fair trial. It also cautions against any injudicious attempts to turn the pandemic-related extraordinary mode of functioning of court hearings into a new ordinary state of affairs and proposes ways in which the associated risks could be averted.