Coherence between the model of remote criminal proceedings and the standards under Article 6 of the European Convention on Human Rights: the reality of threats to a fair trial

ENThe focus on the person in criminal proceedings has traditionally been linked to respect for the physical presence of the parties in the proceedings. Given the exponential growth of scientific and technological progress, an inevitable person- centered approach means the need for a legislative policy that can in any case enable the application of unprecedented fact-checking methodologies and the possibility of achieving a (higher) level of safeguards (Galgani 2023). In other words, the intervention of technological progress in criminal proceedings brings about the need for a cultural approach in which technological transition, development, and diffusion are based on the typical needs of the criminal justice area rather than, conversely, being dictated by the technocratic tendencies of the market economy. The most relevant technological intervention in proceedings in recent years concerns participation in criminal proceedings through the use of technology that transmits a person’s existence or an element of it (otherwise referred to as remote participation, remote proceedings, or online proceedings). The understanding of remote criminal proceedings, as a general category, can be very broad and multi- layered – from individual examinations of witnesses, experts or accused persons by means of videoconference to a full case hearing online. Exposure to and appreciation of the increasingly expanding possibilities of remote participation in certain procedural actions and in the entire trial lead to the question of whether it is not fatal that technological innovation comes along with the identifying features of an axiologically oriented ritual, or whether it is nonetheless possible that there is a hendiadic (Galgani 2023) relationship between the two phenomena.Discussions in academic doctrine on the impact of technological interventions on proceedings as such or on the limits of such interventions refer to the principles of criminal procedure as a point of reference. However, the notion of fair criminal proceedings – which means, inter alia, compliance with the law, the adversarial principle, the impartiality of the judge, the equality of arms and the reasonable length of the proceedings – is more than just a set of these principles. The logos of proceedings is linked to the philosophical concept of ideal justice, which predates the law and is in direct relation to the inviolable, inalienable human rights of the person involved in the proceedings, which the State recognizes and undertakes to protect. Therefore, it may not be allowed for preconditions to be set in for the exercise of decision-making authority, which does not tolerate any barriers and favors the simplification of proceedings (Mazza 2020, p. 80), as well as satisfies the most convenient discretion of the decision-making authority. It must not be forgotten that the equality of arms in criminal proceedings means a balance of powers rather than their equivalence (Tonini and Conti 2022, p. 10). Although active discussions on remote criminal proceedings began in the context of the COVID-19 pandemic, it should be noted that, historically, the possibilities of partial remote criminal proceedings (mostly of individual steps) have long been established in the regulation of the EU Member States and have been discussed many times in the scholarly literature for at least 30 years. [p. 267-268].