The practice of “direct videoconferences” for the taking of testimonial evidence in cross-border cases

During the COVID-19 pandemic, European States developed a practice of conducting cross-border videoconference hearings concerning individuals located abroad without the involvement of the judicial authority of the State in which they were present. These so-called “direct videoconferences” allow the trial State to contact the defendant, expert or witness in the absence of an EIO or MLA request, relying solely on their consent. The practice was discussed in the European Judicial Network and referred to the Court of Justice of the European Union in cases C-255/23 and C-285/23. It was later addressed by the Council of the European Union in evaluating Member States’ implementation of the EIO Directive. Legislative initiatives within the broader European legal framework have also raised questions regarding its legitimacy. This article examines the compatibility of direct videoconferences with the principle of territorial sovereignty and fundamental rights, arguing that procedural forms governing cross- border evidence gathering are essential safeguards of fairness and procedural integrity, rather than mere formalities.