March 03, 2026
On 9 December 2025, the European Court of Human Rights delivered its first merits judgment concerning remote hearings conducted during the Covid-19 pandemic in Stephan Kucera v. Austria. The case related to an appeal hearing against a penalty notice which, under domestic law, was classified as an administrative fine. Owing to the severity of the sanction imposed — a fine of EUR 6,000 and EUR 600 in costs, with five days and fourteen hours’ imprisonment in default of payment — the Court examined the case under the criminal limb of Article 6 §1 of the European Convention on Human Rights.
The judgment raises important questions regarding (a) the procedural guarantees applicable to remote hearings, whether held in response to a public health emergency or in other circumstances, and (b) the right to effective legal assistance in light of the increasing use of videoconferencing technology in criminal proceedings. Although the Court also addressed the right to a public hearing in the context of remote hearings, this aspect will not be examined in this article.
The applicant, the owner of a betting shop, challenged a penalty notice issued by the Vienna municipal authorities in April 2020 for alleged non-compliance with municipal regulations dating back to April 2019. He lodged an appeal in June 2020 and requested a public oral hearing.
In September 2020, he was summoned to attend a hearing scheduled for October by means of a videolink. The summons stated that the hearing would proceed even in the event of his non-appearance. It further indicated that, although access to the court building would be permitted subject to Covid-19 sanitary precautions, entry to the courtroom itself would not be allowed.
The hearing was conducted entirely remotely. The judge participated from the courtroom, while all other participants — including the clerk, the parties, their legal representatives, and witnesses — joined separately via live audio and video connections. Prior to the hearing, the applicant was asked to carry out a connection test.
At the outset of the hearing, the applicant’s lawyer complained of loud background noise and difficulties in following the proceedings. According to the official hearing record — which did not require the parties’ signatures — the issue was swiftly resolved. In subsequent proceedings, however, the applicant maintained that persistent background noise had continued throughout the hearing, although this was not reflected in the record.
The applicant’s lawyer also objected to the remote format of the hearing, arguing that it violated the right to a public oral hearing and the principle of equality of arms. The opposing party’s lawyer supported this objection. The judge did not address these arguments in the course of the proceedings.
Before the Court, the applicant contended that he had been deprived of his right to an oral and public hearing because he had not been allowed to participate in person, and because the public had no genuine opportunity to attend. He further argued that his right to effective legal assistance had been breached, as he had no meaningful possibility to communicate with his lawyer during the hearing.
The Court found no violation of Article 6 and rejected the applicant’s complaints that he had been deprived of his right to an oral and public hearing or otherwise denied a fair trial. Relying on its established case law on videoconferencing — in particular Sakhnovskiy v. Russia — it reiterated that recourse to videolinks must pursue a legitimate aim and that the arrangements must ensure compatibility with Article 6. As stated in Sakhnovskiy (§ 98), this requires that the accused should be able to follow the proceedings and be heard without technical impediments, and that effective and confidential communication with the lawyer should be guaranteed.
The Court accepted that conducting the hearing by videolink pursued the legitimate aim of limiting the spread of COVID-19. It stressed the “exceptional circumstances” prevailing at the time — a public health emergency involving “significant health considerations for society at large” — particularly during the early phase of the pandemic, when vaccines were not yet available (§ 61). Although no lockdown was in force, infection rates were rising at the time of the hearing (§ 60).
The Court distinguished this “very specific context of the COVID-19 situation” (§ 61) from earlier cases where videoconferencing had been used for security reasons, for example in organized crime trials or for considerations of judicial expediency (§ 60). It further emphasised the wide margin of appreciation afforded to Member States in balancing competing rights during a public health crisis (§ 59). Notably, it also observed that it had itself held a Grand Chamber hearing by videolink during the same period (§ 61).
Importantly, however, the applicant did not dispute the exceptional nature of the COVID pandemic. Rather, he argued that the domestic court had failed to consider less restrictive alternatives, such as holding the hearing in a larger courtroom equipped with safety partitions, or postponing the proceedings until sanitary conditions improved — particularly since the limitation period would not have expired then (§ 44).
The Court did not directly engage with these arguments. Instead, it appeared to endorse the Government’s reasoning, which suggested that the judge could not predict the availability of a larger courtroom at the time of scheduling, and that avoiding backlogs and possible impunity due to limitation periods was an important consideration (§ 47). The Court also seemed to rely on the Government’s reference to the objectives of the temporary COVID-related legislation — the COVID-19 Administrative Proceedings Ancillary Act — namely to keep administrative courts operational and prevent delays in administrative criminal proceedings (§ 45).
After finding that the videolink hearing had a legal basis in domestic law (see above) and pursued a legitimate aim, the Court turned to the fairness assessment. This analysis, set out in §§ 63–64, was however comparatively brief.
The Court observed that the sanction at stake was a fine (thus not involving imprisonment as a primary penalty), and that the applicant had been represented by a lawyer. It noted that the lawyer had objected to the remote format only once the hearing had begun, rather than doing so in advance. It further held that nothing had prevented the applicant and his lawyer from participating from the same location or arranging alternative means of communication during the hearing.
As to the alleged technical difficulties, the Court relied heavily on the official hearing record — which stated that the initial connection issues were quickly resolved. It also noted that the record was not read out at the end of the hearing, because the parties agreed to dispense with this formality. On that basis, the Court found no violation of Article 6.
While the pandemic context undoubtedly shaped the Court’s reasoning, several aspects of the judgment raise broader concerns for the future regulation of remote criminal hearings.
First, the case concerned what was effectively a merits hearing in a criminal matter (within the autonomous meaning of Article 6). Yet, emerging international standards and good practice on remote hearings — whether COVID-related or not — have generally cautioned against conducting (non-urgent) criminal hearings on the merits entirely remotely.
Second, consent of the defendant to a fully remote merits hearing is widely regarded as at least relevant, if not essential. In the present case, both parties objected to the videolink format, but the trial judge failed to respond to these objections. Rather than addressing this omission, the Court emphasised that the applicant’s lawyer should have objected earlier — despite domestic regulations suggesting that such an objection would likely have been futile, and could have resulted in the hearing proceeding in absentia.
Third, it is striking that the Court invoked its own use of videolink hearings during the same period as a benchmark for assessing the compatibility of domestic remote trials with Article 6. This is notable given that the Court’s own adherence to fair trial standards has been questioned — including with regard to long delays in cases processing, strict admissibility filtering, and limited reasoning in inadmissibility decisions.
Fourth, the Court appeared receptive to the Government’s argument that holding a remote hearing in this case was necessary to prevent delays and case backlogs, even though the applicant himself had preferred postponement and the limitation period was not imminently expiring. In this specific context — an appeal against a penalty notice, initiated by the applicant himself — this could be viewed as waiver of the applicant’s right to a trial within a reasonable time. The trial could also not be considered “urgent” according to emerging international standards. Available European instruments do not generally treat abstract concerns about backlogs or efficiency, which are detached from the defendant’s interests (e.g. when the defendant is detained) or other important interests related to the particular case (e.g., ensuring witness safety), as a legitimate aim for the use of videolinks in a criminal trial. Although framed within the exceptional pandemic context, this reasoning risks enabling Member States to invoke administrative efficiency as a broader justification for expanding recourse to remote criminal proceedings.
Fifth, the Court’s reliance on the official hearing record to dismiss the applicant’s claims of persistent technical impediments is striking. The fact that the parties agreed not to have the hearing record read out at the end of the session can hardly be decisive. Such a reading would likely have been lengthy and highly impractical, especially given the cognitive and emotional strain typically associated with remote participation.
The Court could arguably have treated the applicant’s allegations with greater plausibility. The parties themselves are best placed to assess whether they were able to follow and meaningfully participate in the proceedings. Moreover, both sides had raised concerns about connection quality, and empirical research (see also here and here) has consistently shown that remote hearings during the COVID-19 pandemic frequently suffered from technical shortcomings. This was particularly true in the early stages of the pandemic, when judicial infrastructures, internet providers and users were still adapting to the sudden and large-scale shift to videoconferencing.
Finally, the Court attached significant weight to the mere fact that the applicant was represented by a lawyer. This formalistic reliance on legal representation raises questions about whether the judgment adequately reflects existing research findings and recommendations on ensuring effective legal assistance in remote criminal proceedings.
In addition to addressing legal assistance within its assessment of the right to an “oral hearing,” the Court separately examined the applicant’s complaint under Article 6 §3 (c) concerning his alleged inability to communicate with his lawyer during the remote hearing. It dismissed this complaint as manifestly ill-founded.
The summary manner in which the issue was treated — without communicating specific questions to the Government or the parties — leaves the precise nature of the grievance unclear. It remains uncertain whether the applicant claimed that no private communication had been possible at all, or rather that communication had been possible in theory but ineffective in practice. This distinction is crucial in remote proceedings, where the mere formal availability of contact does not guarantee its confidentiality, spontaneity, or practical effectiveness.
Empirical research, scholarly accounts and NGO reports documented recurring problems with lawyer–client communication in remote hearings during the COVID-19 pandemic. Even where alternative channels such as instant messaging are available, communication via such channels often lacks immediacy. It frequently requires the use of two devices, divided attention between typing and following the hearing, and creates practical and cognitive burdens for both lawyers and defendants. This also has significant impact on the quality and effectiveness of criminal defence.
In practice, the only fully equivalent alternative to legal assistance during an in-person hearing in the context of a remote hearing is joint participation of the defendant and their lawyer from the same room. Yet expecting lawyers and clients to arrange such participation on their own during a public health emergency arguably imposes a disproportionate burden on the defence, and may expose both the lawyer and the defendant to significant health risks.
In its earlier case law — e.g. Grigoryevskikh v. Russia — the Court stressed that the right to legal assistance assumes particular importance where an accused communicates with the courtroom via videolink (§ 92). It has consistently required States to ensure “effective and confidential communication with a lawyer,” including adequate time and facilities for consultation and the possibility of secure communication channels independent from those controlled by the authorities (§ 83).
From the reasoning in Stephan Kucera, however, it may be inferred that the Court considers that these facilitative duties only apply to the situations where defendants are in custody and their communication is structurally controlled by the authorities. In the present case, the applicant was at liberty; the domestic authorities neither obstructed nor actively facilitated contact with the lawyer during the hearing. The judgment thus appears to suggest that state authorities are disposed of the duty to ensure effective and confidential communication with the lawyer in remote hearings where the defendant is not detained.
There are, however, strong arguments for extending this duty (also) to non-detained defendants in remote criminal proceedings.
First, the Court repeatedly emphasises that Convention rights must be “practical and effective” rather than “theoretical and illusory.” It has also recognised positive obligations of the State to intervene where effective legal assistance is at risk, including outside custodial settings. The Court has furthermore acknowledged an active duty to guarantee adequate time and facilities for defence participation, including during pre-trial interrogations — a setting that offers a useful analogy to remote hearings.
In its case law on early access to a lawyer, especially since Salduz v. Turkey and Pischalnikov v. Russia, the Court has stressed that the presence and effective assistance of a lawyer at the initial stages of criminal proceedings is crucial because of the suspects’ situational vulnerability, the imbalance of power between the individual and the authorities, and the potentially decisive impact of statements made at that stage. Remote hearings share several structural features with (custodial) pre-trial interrogations. First, they may generate heightened psychological pressure: defendants must follow complex proceedings through a screen, often for the first time, while being aware that their demeanour is constantly visible and potentially recorded (livestreamed). In addition, there is the persistent stress and uncertainty surrounding the reliability of the technical connection — whether audio or video will fail at a crucial moment, whether one has been properly heard, or whether a delay has distorted the exchange. Second, remote hearings can intensify existing power asymmetries by placing defendants in technologically mediated settings that are largely controlled by the court, thereby limiting their autonomy, visibility, and opportunities for spontaneous interaction. Thirdly, what is at stake may be equally significant, particularly where the hearing concerns the merits of a criminal charge.
Beyond this, remote participation generates emotional detachment and a sense of disorientation. The physical courtroom is structured by rituals, spatial arrangements, and established cues that signal when to speak, how to intervene, and how authority is exercised. In a virtual setting, many of these tacit markers disappear. The absence of familiar procedural rituals, combined with limited experience of participants — particularly during the early pandemic period — can increase confusion, inhibit spontaneous intervention, and heighten stress.
In this context, the absence of structured and facilitated opportunities for confidential lawyer-clients consultations can have consequences comparable to those identified in interrogation settings. Even if a defendant is not physically deprived of liberty, the digital format may create functional constraints that undermine spontaneity and the ability to seek immediate legal advice. If the Court has recognised a positive obligation to secure effective defence participation at the pre-trial stage due to the suspect’s increased vulnerability and power imbalances, it is arguable that a similar facilitative duty should arise where the procedural design of remote hearings risks producing comparable disadvantages.
Research from the pandemic period further shows that, in the absence of institutional support, the burden of ensuring effective defendants’ participation in remote hearings shifted to defence lawyers. They were required to brief clients on technical aspects of participation, ensure that they had access to appropriate devices and stable internet connections, arrange secure and privacy-proof communication channels for confidential exchanges during the hearing, and identify locations that complied with sanitary requirements while being equipped with adequate technological infrastructure. Structurally, these additional burdens may further deepen inequalities of arms in remote proceedings.
Taken together, these considerations suggest that confining the State’s duty to facilitate lawyer–client communication in remote criminal trials to situations of detention is unduly restrictive. If remote hearings are to comply with Article 6, the guarantee of effective and confidential legal assistance should not hinge solely on custodial status, but on the practical realities of remote participation. At a minimum, this should entail informing defendants of their right to request breaks for confidential consultation and verifying, in advance and during the hearing, that lawyer and client are able to communicate independently of the main trial connection. In addition, this could include ensuring the availability of secure and confidential communication channels separate from the main videoconference link, as well as access to appropriate physical spaces within court premises where lawyers and clients can consult in private, where necessary.
The judgment in Stephan Kucera v. Austria represents an important milestone in the Court’s case law on remote criminal proceedings. Delivered in the exceptional context of the COVID-19 pandemic, it confirms that fully remote hearings may, in principle, be compatible with Article 6 where they pursue a legitimate aim and are accompanied by adequate procedural safeguards. At the same time, the reasoning adopted by the Court leaves several normative questions unresolved. Many of the issues raised in the case are not confined to pandemic circumstances. The increasing digitalisation of criminal justice systems means that remote hearings are likely to become part of ordinary procedural practice.
In this light, the judgment may be read as signalling a cautious openness to the expanded use of videoconferencing in criminal proceedings. However, if remote hearings are to become a structural feature rather than an emergency response, a more robust articulation of procedural guarantees will be required. In particular, greater clarity is needed regarding (i) the permissibility of fully remote hearings on merits in criminal cases, (ii) the role of the defendant’s consent, and (iii) the scope of the state’s positive duty to ensure effective and confidential legal assistance in remote hearings. It remains to be seen whether future case law will develop these guarantees more explicitly.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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