The Use of Videoconferencing at Trial and Its Effects on the Rights of the Defense: A Study of the Future Regulation in The Netherlands

Marianne Hirsch Ballin*, Tess Castelijn

*Corresponding author for this work

Research output: Contribution to JournalArticleAcademicpeer-review

Abstract

This article focuses on the proposed regulation of videoconferencing in criminal procedure in the new Dutch Code of Criminal Procedure, from the perspective of the defendant’s right to a fair trial as guaranteed in Article 6 ECHR. ECtHR case-law demonstrates that videoconferencing can be regarded as a restriction of the right to be present, but may also provide significant advantages, such as providing an alternative when certain trial participants cannot physically attend a trial or hearing. Specific fair trial rights such as the right to counsel, the right to examine witnesses, the equality of arms, and the right to a public hearing may be impacted by using videoconferencing in the criminal process. Technical and practical issues also significantly affect the right to a fair trial. This article provides an analysis of to what extent and in what manner any limitations of defense rights could be adequately compensated in remote settings. Considering that the proposed regulation for videoconferencing mainly formalizes existing Dutch regulations but also provides an opportunity to lay down more rules in an additional governmental decree, this article formulates recommendations that may be included in such a decree. The recommendations concern minimum standards regarding the quality and security of the videoconferencing connection and organizational standards. Finally, the article suggests that a governmental decree should include a procedural toolbox for the judge deciding on the use of videoconferencing at trial, which tools may counterbalance limitations in the execution of defense rights.

Original languageEnglish
Pages (from-to)48-68
Number of pages21
JournalTilburg Law Review
Volume29
Issue number2
Early online date7 Nov 2024
DOIs
Publication statusPublished - 2024

Bibliographical note

Publisher Copyright:
© 2024 The Author(s).

Keywords

  • Article 6 ECHR
  • defense rights
  • equality of arms
  • fair trial
  • new Dutch Code of Criminal Procedure
  • remote criminal justice
  • videoconferencing

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