Published on 3 July 2023

FOURTH SECTION

Application no. 13810/22 Stephan KUCERA against Austria lodged on 9 March 2022 communicated on 14 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the decision of the Regional Administrative Court (RAC) of Vienna to hold an oral hearing in a criminal administrative case via video conference, based on procedural rules aimed at the prevention of the spread of COVID-19.

On 20 April 2020 the municipality of Vienna issued a penal order against the applicant for having violated the Vienna Betting Act ( Wiener Wettengesetz ) and fined him 6,600 euros (EUR). The applicant appealed to the RAC and requested an oral hearing. On 10 September 2020 the RAC summoned him and his lawyer to an oral hearing to be held via video conference, scheduled for 22 October 2020. Its decision was based on sections 3 and 6 of the Administrative COVID-19 Ancillary Act ( Verwaltungsrechtliches COVID-19-Begleitgesetz , “COVID-Act”). At the beginning of the hearing, the applicant’s lawyer requested, relying inter alia on Article 6 of the Convention, the video conference to be suspended and a hearing in person to be held. The opposing party’s representative joined this request. The judge did not decide on the request and continued with the video conference. During the opening of the hearing and the questioning of one witness, a background noise was audible. Both times, the technical issue was fixed by the re-connection of respectively one of the participants. At the end of the hearing, the applicant’s lawyer, supported by the opposing party’s representative, upheld his objections against the virtual form of the hearing.

On 15 March 2021 the RAC dismissed the applicant’s appeal against the penal order and held that the concerns regarding Article 6 of the Convention were unfounded. It considered that mere participation via video link in an appeal hearing was in line with the case-law of the European Court of Human Rights in exceptional circumstances (it referred to the case of Sayd-Akhmed Zubayrayev v. Russia, no. 34653/04, § 27, 26 June 2012). It found that the applicant could follow the proceedings unimpeded by technical difficulties since problems with the sound quality had immediately been solved. Further, the applicant could also effectively and confidentially communicate with his lawyer. Equality of arms had been granted since the opposing party had also participated via video link. The public had been granted access to the hearing as access data to the video conference had been displayed on the door of the hearing room.

On 26 June 2021 the Constitutional Court declined to deal with the applicant’s complaint against the RAC’s judgment, referring to its previous case-law (E 1873/2020) concerning a civil administrative case in which it had considered a video conference based on section 3 of the COVID-Act to be in line with Article 6 of the Convention. The Supreme Administrative Court rejected the applicant’s appeal on 18 January 2022. It found that the application of sections 3 and 6 of the COVID-Act was justified for the purpose of limiting interpersonal contacts. It further held that the applicant had not specified how the video conference had negatively affected him as regards the alleged lack of equality of arms and his right to examine witnesses.

Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complains that he could not participate in person, even though the RAC had decided as first-instance court and had held other hearings in person in the same week. He further complains that the public was excluded from the hearing, although the number of COVID-19 infections was relatively low at the time. He doubted that the access data had indeed been displayed on the door of the hearing room and claimed that costly technical requirements had hindered (part of) the public from participating.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the use of a video link in the present case compatible with the notion of a fair hearing? Did the prevention of the spread of COVID-19 constitute a legitimate aim to use a video link (see Marcello Viola v. Italy , no. 45106/04, § 67, ECHR 2006-XI (extracts); Asciutto v. Italy , no. 35795/02 § 64, 27 November 2007)?

Was the applicant able to effectively participate in the hearing as required by Article 6 §§ 1, 3 (c) of the Convention? Was the measure to let the applicant participate merely virtually “strictly necessary”? Did the national court take less restrictive measures into account (see Marcello Viola , cited above, § 62 and, mutatis mutandis , Bah v. The Netherlands (dec.) , no. 35751/20, § 42, 22 June 2021)? Were other parties in similar situations treated differently ( Marcello Viola , cited above, § 68)? Did the national court make concrete efforts to enable the applicant’s physical presence and explain in detail why this had not been possible?

2. Has there been a public hearing in the present case, as required by Article 6 § 1 of the Convention? How was the public able to obtain information about the date and place of the hearing? Was this information easily accessible to the public (see Riepan v. Austria, no. 35115/97, §§ 29 et seq., ECHR 2000-XII)? Was it “strictly necessary” to limit the public’s right to participate in the hearing to a mere virtual attendance for one of the purposes authorised by Article 6 § 1 of the Convention? Were there any possible alternatives taken into consideration and was the least strict measure given preference and the respective decision reasoned, considering the specific circumstances at the time? In particular, would it have been feasible to hold the hearing in presence by respecting particular safety precautions to prevent the spread of COVID-19, such as distance rules and hygienical measures?