A parent joins a family hearing from a kitchen table. A defendant appears from a custodial room. A lawyer is visible in another window, but there is no private channel for a question that cannot safely be said aloud. Everyone is technically present. That does not yet mean everyone can participate.
Remote hearings can remove journeys, waiting rooms and avoidable delay. They can keep routine procedure moving and allow some vulnerable participants to speak from a place that feels safer. But a court should not treat the availability of a video link as proof that the hearing belongs online. Where liberty, family life, confidential advice, coercion or a person’s ability to take part are genuinely at stake, physical presence should remain available and may need to be required.
The boundary is not nostalgia for the courtroom. It is functional. The right question is which setting gives this person a fair opportunity to understand, consult, respond and be protected from pressure in this particular hearing.
Presence is a capability, not a connection status
European fair-trial law does not say that every hearing must take place in one physical room. Nor does it treat remote attendance as automatically equivalent to presence. The European Court of Human Rights’ February 2026 summary of its case law on hearings by video link says that video participation is not in itself contrary to Article 6 of the European Convention on Human Rights. It can sometimes secure effective participation. The same guidance says that an accused must be able to hear, follow and take part in the proceedings, and that physical presence at a criminal trial is highly desirable even though it is not an end in itself.
That formulation matters. A hearing is not fair because the platform reports a stable connection. Effective participation means that a person can understand what is happening, recognise when something needs correcting, instruct a lawyer, hear the interpreter, follow documents and make a timely intervention. A clear picture can coexist with confusion, intimidation or silence.
The European Union’s Directive 2016/343, which remains in force, requires Member States bound by it to ensure that suspects and accused persons have the right to be present at their trial. Its rules on trials in absence are specific and accompanied by safeguards and remedies. A court choosing video participation is not necessarily conducting a trial in absence, but the Directive reinforces the underlying point: presence is a procedural right connected to participation and defence, not a convenience setting.
What remote hearings improve
The strongest case for remote procedure is substantial. A short case-management hearing may require a party to travel for hours to speak for minutes. A person with limited mobility may find the journey harder than the hearing. A specialist, interpreter or lawyer may be able to attend sooner by video. During disruption, remote capacity preserves access rather than closing the court.
Remote participation can also protect people. A child or a person who has experienced domestic abuse may participate more effectively away from an intimidating physical encounter. The Council of Europe’s 2025 CEPEJ guide on remote hearings reports potential gains in time, cost and comfort, alongside technical and digital-literacy barriers. It also describes arrangements in which vulnerable witnesses give evidence from protected, child-friendly settings. “In person” should not be confused with “in the same room as everyone else”. Sometimes technology creates the distance a person needs in order to speak.
These benefits argue for a capable remote option, especially for administrative stages, uncontroversial directions, professional submissions and participants who make an informed choice. They do not justify turning remote attendance into the cheapest default and asking individuals to prove why they deserve a room.
The first boundary is confidential counsel
A lawyer sitting in a separate video tile is not necessarily accessible to the client. During a physical hearing, counsel can notice confusion, pass a note, request a pause or confer out of earshot. A remote system must deliberately recreate these capabilities. The ECHR guidance treats confidential communication as a basic fair-trial requirement: the accused needs adequate time and facilities to consult a lawyer without being overheard. The CEPEJ guide similarly says a defendant should have a secure line separate from the official video channel.
A private-chat button is not enough if court staff can read it, if the client cannot operate it, or if using it removes the person from the hearing at the crucial moment. Nor is privacy established merely because nobody appears on camera. A person joining from a home, workplace, hospital or custodial facility may be overheard by relatives, employers, guards or another party.
When the court cannot guarantee confidential, usable consultation before and during a consequential hearing, it should change the arrangement. That may mean bringing lawyer and client together at a court or other secure location, using a separate protected channel with reliable pauses, or holding the hearing physically.
The second boundary is hidden pressure
A camera shows only what is inside its frame. It may not reveal who else is in the room, who controls the device or whether a participant can speak freely. This is particularly important in domestic-abuse, family, guardianship and some employment or migration matters. The risk is not that judges need to read truth from facial expressions; research and legal practice give no warrant for treating demeanour as a reliable lie detector. The risk is that the court may not know the conditions under which speech is being produced.
A useful pre-hearing check therefore concerns the environment, not a person’s performance. Can the participant close the door? Is anyone able to hear or prompt them? Do they have a safe way to alert the court? Can they leave the hearing without retaliation? A court should not demand a panoramic scan of a private home as a routine substitute, because that creates its own privacy and dignity problems. Where safety cannot be established without intrusive surveillance, a neutral physical location may be the better technology.
The third boundary is consequence and vulnerability
Technical failure has unequal costs. A lawyer who loses audio in a routine scheduling discussion can ask for the point to be repeated. A detained defendant who misses a question about liberty may not know what was lost. A parent in proceedings that could change contact with a child may struggle to follow rapid exchanges between professionals. A person with cognitive, sensory or language barriers may appear quiet when the real problem is the interface.
This is why the subject and participants of the hearing matter. Decisions about detention, criminal responsibility, removal, compulsory treatment or the long-term care of a child call for a stronger presumption of physical availability. So do hearings involving contested evidence when a party needs continuous confidential instructions, extensive documents or close support. The presumption can be displaced where remote participation clearly protects the person or is their informed preference, but convenience for the institution should not do the displacing.
The 2025 CEPEJ guide frames remote hearings as an access-to-justice instrument that must preserve equal participation and the rights of litigants and defendants. That is a better design principle than classifying hearings only by duration or case type. Two ten-minute hearings can demand very different forms of presence.
A reversible decision, not a one-time checkbox
Courts often decide the hearing format before the practical conditions are known. A fair system must make the choice revisable. The judge should be able to move from remote to hybrid or physical procedure when confidential consultation fails, an interpreter cannot hear both channels, documents are inaccessible, pressure becomes apparent or the participant cannot follow the exchange. Requesting a change should not itself count against the person.
The counterargument is that such discretion reduces predictability and may recreate delay. Courts need consistent criteria, rooms and staff; parties need to know where to appear. A presumption of remote procedure for suitable routine stages can provide that consistency. But the accompanying exceptions must be operational rather than ceremonial. Courts should record why a format was chosen, what adjustments were tested, whether anyone requested a change and whether connection or participation failures altered the hearing.
Performance should then be measured in human terms. Completion rates and kilometres avoided matter, but so do adjournments caused by technology, access to confidential advice, interpretation failures, participant comprehension and differences between represented and unrepresented users. A faster hearing that a person could not effectively enter is not an efficiency gain.
Keep the room as part of the system
Remote justice works best when the physical courtroom remains a live option rather than a legacy exception. The room is a piece of public infrastructure: it supplies neutral space, controlled access, confidential corners, trained staff, reliable equipment and a visible authority responsible for conditions. Digital courts should extend that infrastructure, not use the screen to withdraw it.
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The decision every court needs is therefore concrete: which consequences and participation risks trigger a right to physical attendance, who can invoke that right, and who has authority to stop a remote hearing when its safeguards fail? Until those answers are as dependable as the video platform, some hearings should stay in the room.