Transnational Virtual Criminal Trials in the European Union : Reflections on Occasion of Joined Cases C-255/23 (AVVA and Others) and C-285/23 (Linte) at the CJEU

Abstract

In the wake of the COVID-19 pandemic, the convening of “virtual” and “hybrid” meetings through videoconferencing technology has become a common practice. This trend has also reached the sphere of criminal justice, as more and more jurisdictions, such as Hungary, are authorising hearings and trials to be held without the physical presence of all persons involved. At the same time, yet other criminal justice systems, such as that in Germany, are highly sceptical about any weakening of the requirement that the accused be physically present in the courtroom. Recently, a Latvian court requested guidance from the CJEU as to whether criminal trials employing videoconferencing technology may be held across intra-EU borders, in particular when use of the European Investigation Order (EIO) is made. On procedural grounds, the CJEU, in its judgement of 6 June 2024, refrained from deciding issues relating to the interpretation of Directive 2014/41/EU in different but authentic languages as well as whether the accused not only has a right but also a duty to be present at trial. In our contribution, we approach the topic of transnational virtual criminal trials in the EU through the examples of the Hungarian and the German criminal justice systems and through the two cases put before the CJEU. We will focus on the main trial, excluding other phases of the criminal procedure, such as hearings and questioning of the accused or of witnesses in the pre-trial investigation. We will also elaborate on principles of criminal justice as well as on the availability of the EIO when conducting virtual trials. Lastly, a discussion will follow with an outlook on future legislative options.