Remote Trial and Remote Detention Hearing in Light of the ECHR Standard of the Rights of the Accused

This article concerns the compliance of the institutions of remote trials and remote detention hearings introduced to the CCP by the Polish ‘coronavirus act’ of 19 June 2020 with the ECHR standard on the rights of the accused. In the first part of the article, it is indicated that the ECtHR in its jurisprudence accepts that a trial in the form of a videoconference is not in principle contrary to the ECHR, provided, however, that there are compelling reasons to dispense with the traditional trial (main or appellate) and that the procedure of using a videoconference itself meets the requirements of a fair trial according to Article 6 ECHR and ensures the accused both effective personal participation in the trial and effective use of the services of a defence counsel, in particular the confidentiality of the lawyer’s contact with their client. The Covid-19 outbreak has changed European justice systems, and now videoconferencing in court proceedings is seen not only as an exceptional measure, but as possibly an effective part of the ordinary activity of courts. The analysis of the assumptions of remote trials in ordinary Polish criminal proceedings shows that this institution does not meet the standards of a fair trial, especially the standard of the effective participation of the defence counsel. In contrast, compared to a remote trial, a remote detention hearing in Poland has a wider scope of application and poses serious risks to the standards on deprivation of liberty (Article 5(3) and Article 3 ECHR) and effective defence (Article 6(3) ECHR). The possibility of using both forms of videoconferencing without the participation of a defence counsel and the permanent nature of the changes introduced are particularly worrying.