Legal summary
December 2025
Stephan Kucera v. Austria - 13810/22
Judgment 9.12.2025 [Section IV]
Article 6
Article 6-1
Criminal charge
Fair hearing
Public hearing
Oral hearing
Oral hearing in administrative criminal proceedings via videolink based on procedural rules enacted in the context of the COVID-2019 pandemic: no violation
Article 6-3-c
Defence through legal assistance
Effective legal assistance during a hearing in administrative criminal proceedings that took place via videolink based on procedural rules enacted in the context of the COVID-2019 pandemic: inadmissible
Facts – During the COVID-19 pandemic, the municipality of Vienna issued a penalty notice and a fine against the applicant for breaching the Vienna Betting Act. The applicant appealed to the Vienna Regional Administrative Court and requested a public oral hearing. The hearing was held via videolink and all the participants in the proceedings (the judge, the clerk, the applicant, his lawyer, the lawyers of the opposing party and the witnesses) each used a separate live audio and videolink. The court dismissed the appeal and held that the applicant’s concerns regarding a potential violation of Article 6 in relation to the hearing being held by videolink were unfounded. The applicant unsuccessfully appealed to the Constitutional Court and to the Supreme Administrative Court.
Law – Article 6 §§ 1 and 3 (c):
(1) Complaint concerning the right to an oral hearing and presence at the hearing – The Court had to determine whether holding the oral hearing in a purely virtual manner had satisfied the Convention requirements in the specific circumstances of the present case.
The holding of the oral hearing via videolink had a clear legal basis in the COVID-19 Administrative Proceedings Ancillary Act, which permitted the holding of oral hearings by means of suitable technical equipment for audio and video transmission. Furthermore, it had served the legitimate aim of reducing the spread of COVID-19. The Court reiterated the very specific context of the COVID-19 public health emergency that had posed significant health considerations for society at large and therefore qualified as exceptional and unforeseeable circumstances.
As to the manner in which the hearing was held, the Court observed that the first instance hearing had concerned the establishment of facts and had not related solely to questions of law which could have been decided on the basis of written materials. Personal attendance had also been important to the applicant. However, the Court reiterated that a defendant’s participation in proceedings via videolink was not as such contrary to the Convention. While physical presence was highly desirable, it was not an end in itself: it served the greater goal of securing the fairness of the proceedings taken as a whole.
In that regard, the Court underlined that the sanction at issue had been a fine, that the applicant had been represented by a lawyer, and that both had participated in the video-conference. Moreover, his lawyer had not objected to the holding of the hearing via videolink before the hearing, but only once it had begun. The applicant and his lawyer had been free to arrange their participation separately or jointly. Furthermore, they had been able to present arguments and to question the witnesses.
Sound problems had occurred twice during the hearing and had been easily and quickly resolved. Most importantly, the parties, including the applicant and his lawyer, had agreed that the record of the hearing would not be read out at the end of the hearing, which would have provided them with an opportunity to request that a remark about constant sound problems be added to the record. Therefore, there was insufficient evidence before the Court attesting to the presence of constant technical problems.
The applicant had thus been able to fully enjoy his rights with respect to the holding of an oral hearing despite it having been held via videolink for all participants to the proceedings.
Conclusion: no violation (unanimously).
(2) Complaint concerning the right to a public hearing – Given that the hearing had not been held in an actual courtroom but in a purely virtual manner, a factual scenario which the Court had not yet had occasion to examine, the State had been under the obligation to take compensatory measures to ensure that the public and the media had been duly informed of the venue for the hearing.
The information about the hearings that would be held could easily be obtained by consulting the first instance court’s bulletin board, located within its building. Despite the then ongoing COVID-19 pandemic, access to the building had remained possible. The information that the hearing would be held in the form of a video-conference had been available either on the door of the courtroom indicated on the bulletin board or, if not, the judge presiding over the hearing, present in the courtroom, could have informed anyone entering the courtroom of the possibility to participate in the video-conference.
While one would have had to undergo a security check before being able to access the courtroom, that could not be considered as hindrance in fact, as this was in any event a prerequisite for accessing any court hearings held in person. Consequently, in the particular circumstances of the present case, displaying the number of the courtroom of the presiding judge on the bulletin board had been sufficient as a compensatory measure to ensure that the public and the media had been duly informed of the venue for the hearing.
The Court also emphasised that even if certain parts of the population did not possess the necessary know-how or the technical equipment, other parts of the population had still undeniably been able to access the hearing electronically, thereby sufficiently ensuring the effectiveness of the right to a public hearing for the litigants in the present case.
Accordingly, in the very specific circumstances of the present case, the information about the applicant’s hearing via videolink had been sufficiently accessible to the public.
Conclusion: no violation (unanimously).
(3) Complaint concerning the right to effective legal assistance – The first instance court had not obliged the applicant and his lawyer to participate in the hearing via videolink from two separate locations. They had been free to arrange their participation separately or jointly and free to make arrangements for a separate private communication channel between them during the hearing. Nothing in the case file indicated that any security measures had been ordered to prevent confidential communication between the applicant and his lawyer.
Conclusion: inadmissible (manifestly ill-founded).
(See Sakhnovskiy v. Russia [GC], 21272/03, 2 November 2010, Legal Summary; Denis and Irvine v. Belgium [GC], 62819/17 and 63921/17, 1 June 2021, Legal Summary; Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], 21881/20, 27 November 2023, Legal Summary; Alppi v. Finland (dec.), 15736/22, 28 November 2023; Pasquinelli and Others v. San Marino, 24622/22, 29 August 2024, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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