‘COVID’s Choice? Criminal Trials, and the Right to Be Present, the Right to Be Tried Within a Reasonable Time and the Possibilities of Remote Participation

The COVID-19 pandemic challenged many legal authorities’ abilities to provide prompt and fair justice. Focusing on two component rights of the broad right to a fair trial, namely the right to be present and the right to be tried within a reasonable time, this article discusses the extent to which these two component rights were drawn into conflict during the pandemic, when ordinary, in-person trial proceedings were no longer possible. Focusing on the delicate balance that must (always) be struck between these two component rights, most especially during extraordinary circumstances such as those of the pandemic, the article uses Belgium, as well as the results from an empirical study undertaken in this jurisdiction, as a case study to demonstrate the ways in which these two component rights can be—and were—(improperly) balanced during moments of urgency. It proffers the idea that while remote proceedings may not give full equivalence to many components of the right to a fair trial, it is nonetheless clear that there is a time and place for remote participation by the accused: when forced to choose between the right to be present and the right to be tried within a reasonable time, remote participation offers an alternative in which both of these component rights may be met. Without the urgency of the pandemic forcing such undesirable dichotomies of choice, now is a pertinent moment to develop legislative policies that allow for remote and online participation in criminal proceedings which nonetheless ensure fair trial rights are upheld.