The introduction of videoconferencing in criminal proceedings has clear advantages, especially at times when the medical situation dictates social distancing. The development of modern means of communication techniques in combination with the need to save time and money has led to the introduction of the possibility of hearing defendants (suspects and indictees), witnesses (material and expert ones) by means of videoconferencing. The application of videoconferencing also ensures the physical or psychological protection of some witnesses (minors, victims of sexual abuse or protected witnesses). In particular, hearing by videoconferencing can contribute to their protection against reprisal by the defendant and his accomplices and/or relatives. 

Improving the quality of justice administration is also an important consequence. Witnesses, who otherwise could not contribute to establishing the truth, can be heard using videoconferencing. In some situations, the examination via video-conference might be the only possible way to obtain evidence from vulnerable witnesses who is under protection, with granted anonymity from the defendant. Besides, the videoconferencing increases that chances of the examination of witnesses who, due to the large distance or otherwise, cannot be heard at all or might be heard only with unjustifiable/unaffordable difficulties. Lastly, the videoconferencing brings about some reduction of delays resulting from the travel of witnesses from distant locations. In most cases, such delays are too difficult to avoid when the witness shall come to testify in front of the court.

The technical possibilities seem limitless. However, caution is required. Attending a trial remotely using videoconferencing is in itself not contrary to the fair trial principles, provided its application serves a legitimate purpose and the manner of implementation is compatible with the rights of the defence. 

At the same time, alienation or mechanisation of the administration of criminal justice can easily occur if videoconferencing is applied en masse. If society gets the impression that handling court cases using videoconferencing impairs the quality of the administration of justice,  the   danger   would   arise   that videoconferencing ultimately impairs the legitimacy of the administration of justice. This is all the more pertinent for defendants who doubt the quality of the proceedings and consequently, the correctness of the outcome of their criminal proceedings.

Legislative Examples

The spread of coronavirus in East Africa and the required social distancing, in particular, would inevitably accelerate the introduction of video links in all spheres of life. Criminal justice cannot be an exception. However, when it comes to this social sphere, its specific peculiarities and needs must be carefully taken into consideration.

In most situations, videoconferencing in criminal justice is a method of collection of evidence. The collection of such evidence necessitates a precise legal framework. Otherwise, if no legal framework for video conferences exists, this would always endanger the admissibility of this evidence in court. In some other situations, videoconferencing concerns, in one way or another, the protection of the rights of the participating persons: defendants, witnesses. In such situations, the legal framework for video conferences is designed to guarantee the protection of their rights [1]. 

Foreign countries provide some appropriate legislative examples of regulating the use of videoconferencing in criminal cases. Mostly, the specific examples, which follow, are from the Criminal Procedure Codes [CPC] of countries, like Somaliland, whose legal tradition is not significantly different from the Italian [2].

EXPELLED OR DETAINED DEFENDANT

Article 344 (3-5) of the Albanian CPC 

The Presence of the Defendant in the Hearing

• The defendant participates in the hearing as a free person even when he is detained, except when it is necessary to take measures indispensable to prevent the risk of escaping or of violence

• When a defendant with his behaviour hinders the regular performance of the hearing, the court may order the removal of the defendant from the courtroom for a definite period of time. If, even after returning to the courtroom, the defendant continues to obstruct the regular performance of the hearing, the court may order that he is removed until the decision is announced

• When possible, the defendant removed, pursuant to paragraph 2 of this Article, shall attend the hearing through audio and/or video links.

• The defendant expelled from the hearing in compliance with paragraph 2 of this Article shall be considered to be present and shall be represented by the defence lawyer. He/she can be readmitted into the courtroom at any time

Article 106 (2-3) of the Romanian CPC 

Special Rules Regarding the Hearing

• If, during the hearing of a person, such person shows visible signs of excessive fatigue or symptoms of a disease that affects their physical or psychological capacity to participate in the hearing, judicial bodies shall order the cessation of the hearing and, if the case, shall procure that the person is examined by a physician

• A detained person may be heard at the detention facility through videoconference, in exceptional situations and if judicial bodies decide that this does not harm the proper conducting of the trial or the rights and interests of the parties

• In the situation set by par. (2), if a person subject to hearing finds themselves in any of the situations set by Art. 90, their hearing may be conducted only in the presence of their counsel at the detention facility

The video link for the expelled defendant should be installed in another room of the courthouse while the video link for the detained defendant should be installed in a room of the detention center. The identity and the participation of the defendant in the videoconference shall be verified by a designated officer from the court/ detention center. This officer shall be present at the videoconference and shall draw up a written report for the court panel about the participation of the defendant in the videoconference. Should an interpreter participate, he must be present at the courtroom unless the court panel expressly decides that this interpreter shall accompany the defendant.

The videoconference possibility might also be applicable, accordingly, to the Habeas Corpus procedure under Articles 39 and 45 of the CPC of Somalia in conjunction with Article 130 of the Constitution of Somaliland and Article 9  of the International Covenant on Civil and Political Rights in conjunction with Article 10 of the Somaliland Constitution. This is a procedure whereby the competent court approves the detention of an arrested person in his presence [3]. 

However, the participation of defendants in court hearings via video link appears as an exceptional solution in Europe. The European Court of Human Rights decided in two cases against Italy dealing with the use of videoconference while defendants were located in a remote location. According to Article 146 bis of the Italian CPC, in proceedings concerning one of the offences provided for in Article 51, paragraph 3 bis, and Article 407, paragraph 2, sub-paragraph (a), no. 4 of the Code [that is, mainly Mafia-related and other serious offences], a person who, in any capacity, is detained in a prison shall participate in the hearings at a distance in the following cases: (a) where there are serious requirements of public safety or order; (b) where the proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays. In considering the requirement of avoiding delays in the proceedings, regard shall also be had to the fact, where applicable, that other proceedings are pending at the same time against the same defendant before different courts.

The European Court of Human Rights accepted that participation of the defendant in the hearing by videoconference is not equal to his physical presence in the place where a session is held. The Court identified the standards which shall be applied during videoconference to guarantee that the right to a fair trial is complied with. First of all, there must be a justified reason not to bring the defendant to the courtroom, and this shall be evaluated independently by the court. The defendant must hear and see from the remote location persons who participate in the proceedings in the courtroom; he must be heard and seen by the judges, witnesses and other participants in the session. The defence lawyer must be able to communicate with the defendant in a confidential manner, both from the courtroom and from the place of detention [4].

VULNERABLE WITNESSES MOSTLY [see also Article 24 (2), “b” of the UN Convention against Transnational Organized Crime and Article 32 (2), “b” of the UN Convention against Corruption]

Section 134 (3-6) of the Slovak CPC 

• A witness who cannot appear for examination because of his age, illness, physical or mental handicap or because of other serious reasons, may be examined using technical devices for the transmission of audio and video

• The provision of paragraph 1 shall apply, as appropriate, to the witnesses residing abroad who cannot or do not want to appear for examination but are ready to testify, and where the competent authority of the foreign State provides necessary legal assistance 

• The provision of paragraph 1 shall apply, as appropriate, also to the examination of endangered witnesses or protected witnesses who are granted assistance under separate legislation. The same procedure shall apply to the witnesses who are to be examined in another matter or at the examination of a witness in criminal proceedings on criminal offences of terrorism

• If a person who is a particularly vulnerable victim under a special Act is being interrogated as a witness in criminal proceedings, the interrogation shall be conducted in a manner that is considerate and, in terms of the contents, secures that the interrogation will not have to be repeated in further proceedings; the provision of Section 135 paragraph 1 shall not be thereby affected. The interrogation shall be conducted with the use of technical devices designated for audio and video transmission; the provision of Section 270 paragraph 2 shall not be thereby affected. The law enforcement authority shall secure that in the preliminary hearing the interrogations are conducted by the same person, unless the course of the criminal proceedings is thereby impeded. A psychologist or expert who is to contribute to the proper conduct of the interrogation with regard to the subject matter of the interrogation of the interrogated person shall be invited for the interrogation; the provision of Section 135 paragraph 1 shall not be thereby affected. 

• Where a person who is a particularly vulnerable victim under a special Act is being interrogated as a witness in criminal proceedings conducted for a criminal offence against human dignity, a criminal offence of human trafficking or a criminal offence of maltreatment of a close person and entrusted person, the interrogation in the preliminary hearing shall be usually conducted by a person of the same sex as the interrogated person, unless it is prevented by serious reasons which shall be stated by the law enforcement authority in the transcript

For the purposes of the efficient protection of such witnesses, special rules shall describe the location where they shall testify from as well as the peculiarities of their identification and giving testimony. In any case, a designated officer from the location of the witness shall verify his identity of this witness and report it through the video link to the presiding judge of the court panel hearing the case before the start of the examination. The oath or the affirmation of the witness (under Articles 181-182 of the CPC) shall also be given through the video link to the presiding judge of the court panel hearing the case. The designated officer shall be present at the videocenference and shall draw up a written record/report for this court panel about the participation of the witness in the videoconference. Should an interpreter participate, he must be present at the courtroom unless the court panel expressly decides that this interpreter shall accompany the examinee.

Such videocenferences reveal some peculiarities which should necessarily be taken into consideration. On the one hand, the participants are not present in the same room, but they can see and hear each other. The examiner can ask questions and receive a direct answer as if the witness were present in the same room [5]. On the other hand, the limited interaction between the witness and the examiner always creates a challenging situation. On the one side, the limited interaction between them may influence the way in which the witness testifies. On the other side, the limited interaction between the witness and the examiner may impact on the assessment of the credibility of the testimony given. During an examination conducted via video-link, the possibility to properly observe and evaluate non-verbal cues may be limited. It may have a diminishing effect on the possibility to react to the behaviour of the witness. 

It is also much easier for a witness to behave improperly when he is not present in person in the courtroom. He may show a lack of deference required by court decorum. Obviously, no disciplinary measures could be applied. Therefore, a judge’s role to ensure proper conduct of such proceedings is much more difficult to fulfil than in cases when the witness stands directly in front of him. Furthermore, good cooperation with the person accompanying the witness in the remote location is of particular importance to make sure that the witness behaves adequately.

C. NON-VULNERABLE WITNESS UNABLE TO ATTEND

Article 404 of the Serbian CPC

Examining Evidence Away from the Trial 

If it is learnt at the trial that a material witness or expert witness either cannot appear before the court or that there is substantial difficulty to his appearance before the court, the panel may, if it deems his testimony important, order him examined away from the trial by the president of the panel, or a judge member of the panel, directly or through an audio and video link. 

If it is necessary to conduct a crime scene investigation or reconstruction away from the trial, the panel will authorise the president of the panel or a judge member of the panel to do so. 

The parties, defence counsel, the injured party and any professional consultant will be notified about the place and time of the performance of the evidentiary actions referred to in paragraphs 1 and 2 of this Article and advised that during their performance they are entitled to the rights referred to in Article 402 of this Code.

Obviously, it does not follow that any witness, who is away, might be examined via video link. In cases, were the safety of the witness is not at stake, the defence is more reluctant to accept the examination of a witness not standing face–to–face with the defendant. Therefore, the court must decide whether this way of examination of a witness will be justified and proper to realize all the aims of the criminal trial. In deciding whether to permit examination of a witness by video conference, the court takes into consideration the following elements:

• The general principle of immediacy that evidence and arguments should be presented directly in open court

• The importance of the evidence to the determination of the issues in the case

• The effect of the video-conference on the court’s ability to make findings, including determinations about the credibility of witnesses

• The importance in the circumstances of the case of observing the demeanour of a witness

• The reason why a witness is unable to attend

• The balance of convenience to the party wishing the video-conference and the interests of the party or parties opposing it

• Any other relevant matter as well [6]

As a general rule, the witness should testify from a same level territorial court with video equipment, which is the closest to his current residence. If the witness is in a detention center with such equipment, he should testify from the premises of this center. The witness shall be summoned by this court/ detention center at the request/order of the court panel hearing the case.

A designated officer from the executing court/ detention center shall verify the identity of the witness and report it through the video link to the presiding judge of the court panel hearing the case before the start of the examination. The oath or the affirmation of the witness (under Articles 181-182 of the CPC) shall also be given through the video link to the presiding judge of the court panel hearing the case. The designated officer shall be present at the videocenference and shall draw up a written record/report for this court panel about the participation of the witness in the videoconference. Should an interpreter participate, he must be present at the courtroom unless the court panel expressly decides that this interpreter shall accompany the examinee.

D/ USE OF VIDEOCONFERENCING IN THE INVESTIGATION/ PRE-TRIAL PHASE

Article 232 of the Ukrainian CPC 

Conducting interrogation or identification in the mode of video conference during the pre-trial investigation

Interrogation of persons, identification of persons or objects during the pre-trial investigation may be conducted in the mode of video conference involving transmission from other premises (distant pre-trial investigation) in the event that

• Certain persons are not able to participate directly in pre-trial proceedings for health or other valid reasons

•  It is necessary to ensure the safety of persons

• A minor or underage witness or victim is interviewed

• Such measures are necessary to ensure speedy pre-trial investigation

• There are other grounds deemed sufficient by the investigator, public prosecutor, investigating judge

• A decision to conduct distant pre-trial investigation shall be made by the investigator, public prosecutor or, where an interrogation is conducted in the mode of video conference under Article 225 of this Code, by the investigating judge on his own initiative or on a motion of a party to criminal proceedings or other participants of criminal proceedings. If a party to criminal proceedings or victim object to conducting the distant pre-trial investigation, the investigator, public prosecutor, investigating judge, may decide to conduct one by his reasoned resolution (ruling), providing substantiation for such decision. A decision to conduct the distant pre-trial investigation, if the suspect is to be in such other premises, may not be taken where the suspect objects to such

• Technical equipment and technologies used in the distant pre-trial investigation shall ensure adequate quality of image and sound and informational security. Participants in investigative (detective) action concerned shall be ensured the possibility to distantly ask questions and obtain answers from the person participating in the investigative (detective) action and exercise other procedural rights granted to them and perform their procedural duties as provided for by this Code

• A person shall be interrogated in distant pre-trial proceedings in compliance with rules set out in Articles 225-227 of the present Code. Persons or objects shall be identified in distant pre-trial proceedings in compliance with rules set out in Articles 228 and 229 of the present Code

• If a person who is to be taking part in the pre-trial investigation distantly– pursuant to a decision of the investigator or public prosecutor– stays in premises located in the territory under the jurisdiction of the body of pre-trial investigation…, an official of such body of pre-trial investigation shall be under the obligation to hand over a leaflet on his procedural rights to such the person, to check on his ID, and to stay near until the end of the investigative (detective) action

• If a person who is to be taking part in the pre-trial investigation distantly– pursuant to a decision of the investigator or public prosecutor- stays in premises located outside the territory under the jurisdiction of the body of pre-trial investigation…, the investigator, public prosecutor assigns by his resolution and within his competence body of security, body supervising compliance with the tax legislation, unit of the National Anti-Corruption Bureau of Ukraine or unit of the State Bureau of Investigations of Ukraine, in whose territorial jurisdiction such person stays, to carry out the actions specified in the fifth paragraph of this Article. A copy of this resolution may be sent by e-mail, fax or via other means of communication. The official of the requested body, in agreement with the investigator, public prosecutor, who gave the assignment, shall be required to organize the execution of such assignment as soon as possible

• The pre-trial investigation conducted under the decision of the investigating judge shall be carried out in accordance with provisions of this Article and the fourth and fifth paragraphs of Article 336 of this Code.

• If a person who is to be taking part in the pre-trial investigation distantly is held in custody in a remand prison or penal institution, actions provided for by the fifth paragraph of this Article shall be conducted by an official of such institution

• The course and results of investigative (detective) action as conducted in the videoconference mode are fixed with the use of video (audio) technical devices.

• 10. A person under protection may be interrogated in the videoconference mode with such changes in his outward appearance and voice which make impossible his identification

• In order to ensure promptness of criminal proceedings, the investigator or the public prosecutor, may conduct the interrogation in the videoconference or telephone conference of a person who for reasons of staying in a location remote from the place where the pre-trial investigation is conducted, illness, being busy or for other reasons, is not able to appear on time and without excessive difficulty before the investigator, public prosecutor.

Based on results of interrogation conducted in the videoconference or telephone conference mode, the investigator or the public prosecutor shall draw up a report in which indicates the date and time of interrogation, data on the interrogated person, identification features of the communication device used by the interrogated person, as well as circumstances which he communicated. If necessary, the interrogation shall be fixed by audio or video recording technical means.

Investigator, public prosecutor shall be required to take measures to establish the identity of the person who has been interrogated in the videoconference or telephone conference mode, and to indicate in the report in what way the interrogated person’s identification was confirmed. Whenever it is necessary to obtain testimonies from interrogated persons, the investigator or the public prosecutor shall conduct their interrogation [7].

DEPLOYMENT FOR THE TRANSBORDER EXECUTION OF INTERNATIONAL LETTERS ROGATORY [see also Article 18 (18) of the UN Convention against Transnational Organized Crime and Article 46 (18) of the UN Convention against Corruption]

Article 9 (3) of the Turkish Law on International Judicial Cooperation in Criminal Matters

Legal assistance through audiovisual communication technique 

• Using audiovisual communication technique may be requested to be used during the execution of the request for legal assistance. These activities shall be conducted under the supervision of the competent authorities of the executing country and in accordance with the law of this country

• In the event that Turkish judicial authorities request that the request for legal assistance is executed through audiovisual communication techniques, the request shall be executed, as long as it is provided for by the international agreements, under the supervision of Turkish judicial authorities and in accordance with Turkish law

• In the event that judicial authorities of a foreign country request that the request for legal assistance is executed through audiovisual communication techniques, the request shall be executed, as long as it is provided for by the international agreements, under the supervision of the judicial authorities of the requesting country and in accordance with the law of that country. During the execution of this request, Turkish judicial authorities shall be present and it shall be observed that the fundamental principles of Turkish law are not violated

The development of technology has made it largely possible for persons located in different points around the globe to communicate with each other, in such a way that they all can simultaneously hear each other and see each other in real-time, via a video link. This is especially true where it is not possible, or desirable, or practical, or economic to bring such persons together in the same point. "Not possible" could apply, for example, to cases where the witness would be exposed to serious danger if appearing in the requesting country; "not desirable" could apply, for example, to cases where the witness is very young, very old or in bad health.

In the context of the above-quoted paragraph 3 as well similar legal provisions, the reference to "fundamental principles of law" implies that a foreign request [8] shall not be refused for the sole reason that hearing of witnesses and experts by videoconference is not provided under the law of the requested country, or that one or more detailed conditions for a hearing by videoconference would not be met under national law. 

Lastly, the applicable law shall be the law of the country where the person is, i.e. the place where the person may immediately, without further steps, be prosecuted, if appropriate, for perjury. Moreover, this solution is intended to guarantee that the witness, in case of non-compliance with an obligation to testify, is subject to consequences similar to those applicable in a domestic case not involving videoconference.

The executing authorities of the requested country shall clarify in advance whether the potential interviewee (defendant or witness: material or expert) is in its territory and able to testify. Thereafter, he must be duly summoned to the office, from which video interviews to foreign countries are carried out.

In Europe, the international videoconferencing in the execution of letters rogatory is governed by Article 9 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters. This Article reads in pertinent part as follows: 

• “If a person is in one Party’s territory and has to be heard as a witness or expert by the judicial authorities of another Party, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by video conference

• The requested Party shall agree to the hearing by video conference provided that the use of the video conference is not contrary to fundamental principles of its law and on condition that it has the technical means to carry out the hearing. If the requested Party has no access to the technical means for video conferencing, such means may be made available to it by the requesting Party by mutual agreement

• Requests for a hearing by video conference shall contain, in addition to the information referred to in Article 14 of the Convention [9], the reason why it is not desirable or possible for the witness or expert to attend in person, the name of the judicial authority and of the persons who will be conducting the hearing

• The judicial authority of the requested Party shall summon the person concerned to appear in accordance with the forms laid down by its law”.

Sooner or later, Somaliland would be under pressure to grant and execute foreign requests (international letters rogatory) for examination through videocenferences Article 277 of the CPC. This would make it necessary to develop some domestic legal framework for videoconferencing in criminal cases. Many examples of such videocenferencing exist in foreign countries. The Somaliland authorities may consider these examples and borrow the most appropriate of them.

It is noteworthy that videoconferencing in criminal justice is not only a matter of technical equipment. This specific method requires legal provisions. The lack of such provisions not only endangers the reliability of evidence collected via video links but may as well undermine the protection of the rights of the participating defendants and witnesses. Hence, to miss producing legal provisions on video-conferencing is the easier option, these days, but not necessarily the better one.

1. “The courts and the COVID-19.”International Commission of Jurists, 5 May 2020, https://www.icj.org/wp-content/uploads/2020/05/Universal-ICJ-courts-covid-Advocacy-Analysis-brief-2020-ENG.pdf. Accessed 8 May 2020.

2. “Somaliland: Legal system and history.” NYU Law Globalex, https://www.nyulawglobal.org/globalex/Somaliland.html. Accessed 28 Jan. 2020.

3. Garrett, B. “Habeas corpus and due process.” Cornell Law Review, vol. 98, no. 1, Nov. 2012, p. 47.

4. Adamska-Gallant, A. Video conferencing in the practice of the international criminal tribunals, p. 7. https://www.academia.edu/19730690/Video_Conferencing_in_Practice_of_Criminal_Courts. Accessed 19 May 2020.

5. Van der Vlis and Evert-Jan. Videoconferencing in criminal proceedings, p. 2. http://www.videoconference-interpreting.net/wp-content/uploads/2014/04/02 _vanderVlis.pdf. Accessed 19 May 2020.

6. Adamska-Gallant, A. Video conferencing in the practice of the international criminal tribunals, p. 11. https://www.academia.edu/19730690/Video_Conferencing_in_Practice_of_Criminal_Courts. Accessed 19 May 2020.

7. Сердюк, В. Видеоконференция в уголовном производстве Украины, p. 181. http://www.legeasiviat a.in.ua/archive/2013/11-4/44.pdf. Accessed 30 Apr. 2020.

8. Article 277 of the Somali CPC in conjunction with Article 130 (5) of the Constitution of Somaliland and Articles 14–21 of the Riyadh Arab Agreement for Judicial Cooperation in conjunction with Article 10 (1) of the Constitution of Somaliland.

9. “Requests for mutual assistance.” Quoted section from The Riyadh Arab Agreement for Judicial Cooperation.