VIDEOCONFERENCE IN NATIONAL LAW AND EU REGULATIONS

doc. dr. sc. Aleksandra Maganić, Pravni fakultet Zagreb

1. INTRODUCTION

BENEFITS speed easier access to

other courts availability of

witnesses who are located in other Member States

savings effectiveness of

procedure

DISADVANTAGES the high cost of

equipment training technical problems problems in

identification

2. NORMATIVE FRAMEWORK National legislation show very large

differences: 1. Countries where is no legal

framework for the implementation of videoconferencing

2. Countries where the legal framework exists but there is no technical equipment

3. Countries where the use of video links is very good accepted

The Relationship between the Hague Convention and Regulation:

Regulation explicitly provides for the application of videoconferencing (Art. 10/4)

Hague Convention regulates only that it will follow a request of the requesting authority that a

special method or procedure be followed, unless this is incompatible with the internal law of the State of execution

or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

(Art. 9/2) Regulation shall in relation to matters to which it applies,

prevail over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States (Art. 21/1).

Are the national provisions on the videoconference necessary or not?

In principle videoconferencing is prescribed in the rules of civil procedure

WHY IST THAT IMPORTANT? In terms of Regulation, the courts of the Member States

can be REQUESTING COURT and REQUESTED COURT As the requesting court – may ask the requested court to

use communication technology at the performance of the taking of evidence (videoconference and teleconference) – Art. 10/4

The requesting court may call for the request to be executed in accordance with a special procedure provided for by law of its Member State – Art. 10/3

The requested court shall execute the request in accordance with the law of its Member State (Art. 1/11, 10/2).

The requested court shall comply with such requirement unless;

this is incompatible with the law of the Member State, or

by reason of major practical difficulties 1. Countries without legal framework for

VCF Does that mean that requested courts may

refuse videoconference, if this issue is not regulated by their national law on the grounds that is incompatible with the law of the Member State of the requested court ?

In this case, only possibility to made available technical means are not sufficient

2. Countries that regulated VCF but tehnical equipment is not available

Possibility to made available technical means are not sufficient because the judges do not have practical knowledge of the VCF

The requested court may refuse to comply with the requirement for major practical difficulties

3. Countries that regulated VCF and have experience in the application of VCF

The requested court shall execute the request in accordance with the lex fori.

Other provision which prescribes encouraging the use of communication technology such as VCF is in connection with direct taking of evidence by the requesting court.

Where a court requests to take evidence directly in another Member State , it shall submit a request to the central body or competent authority.

Central body or the competent authority shall encourage the use of VCF (Art. 17/4) only if the direct taking of evidence is not contrary to fundamental principles of law in its Member State.

Difference – in this case is applied law of Member State which is requesting for direct taking of evidence

Can be only performed on a voluntary basis (without the coercive measures)

3. DOUBLE ROLE OF VCF

Videoconference has double role – means of evidence and method in taking of evidence

If the VCF used as evidence - will be evaluated video or audio recordings.

Is this new means of proof or not? a) subject of ostensible evidence (Austria,

German in the initial period before the amendment of the Code of Civil Procedure) b) electronic documents (private or public);

which status has electronic documents in each Member State?

c) what is the probative value of each of these means of evidence?

4. SOME COMPARATIVE MODELS

GERMANY Art. 128.a/1 CCP 2001. With the consent of the

parties, the court may allow the parties, their attorneys and assistants at their request to be present at another location during a hearing, and there perform procedural acts. The hearing will be simultaneously transmit, audio and video, to the place where the parties, attorneys and assistants are and in the courtroom.

Problems: consent of the parties and their request

VCF trail

Art 128.a/1 CCP 2014. The court may order the

parties, their attorneys and assistants at their request or ex officio to be present at another location during a hearing, and there perform procedural acts. The hearing is at the same time audio and video transfer to this place and in the meeting room

New – court can order VCF without consent of the parties and ex officio

VCF trail

Art. 128.a/2 CCP 2001 With the consent of the

parties, the court may order to witness, expert or party to be present at another location during a hearing. The hearing is at the same time audio and video transfer to this place and in the meeting room. If parties, their attorneys and assistants of parties referred to in paragraph 1 , sentence 1are allowed to stay at a different location, the hearing will be transfered to this place.

VCF taking of evidence

Art. 128.a/2 2014 On request the court may

order to witness, expert or party to be present at another location during a hearing. The hearing is at the same time audio and video transfer to this place and in the meeting room. If parties, their attorneys and assistants parties referred to in paragraph 1, sentence 1are allowed to stay at a different location, the hearing willbe transfered to this place.

New – court may order VCF without consent of the parties

VCF taking of evidence

4.2. AUSTRIA

§§ 289.a-289.b CCP – special provision for victim of crimes and minors.

Court is able to limit the hearings topic or decide completely against the hearing if the underage persons well-being is endengered.

§ 277. CCP Videoconference conveys a better personal impression

than a protocol of a questioning through mutual assistance procedures.

2009. – 1 404 (cross border 130) 2013. – 4 134 (cross border 632) IT- Reservation system - system for booking rooms

equipped with technical equipment for videoconference

4.4. CROATIA

The Code of Civil Procedure does not contain specific legal provision for the taking of evidence by videoconference

As a means of evidence – video recordings are subject to ostensible evidence

Electronic Document Act provides that the contents of electronic documents including all forms of written text, data, pictures and drawings, maps, sound, music, speech (Art. 4 No. 1) – are video recordings electronic documents?

In this case, this means of evidence have greater probative value then that of subject to ostensible evidence

As the type of taking of evidence, videoconference is not possible in civil procedure

If a national court or judges have no experience with the use of videoconferencing technology- how they can apply demands of Regulation?

Videoconferencing is provided for explicitly in the Code of Criminal Procedure (Art. 87/1)

As provided in this Act, hearings, evidentiary action or other action is recorded with devices for audio-video or audio recording.

This provision has a much wider range of the hearing of witnesses. Judges in criminal procedure have experience in apllying of videoconference.

5. CONCLUSION

Member States of the European Union have a very different approach to the application of videoconferencing in civil proceedings.

Differences are reflected in the normative sense: 1. whether is videoconferencing in principle prescribed in national law 2. the way in which is prescribed

In the practical sense 1. whether are available technical means or not 2. have judges experience in the application of videoconferencing Therefore, differences in national systems can be an obstacle for the application of Regulation

There is no uniformly approach in the sense of probative value of videoconference or in relation to the legal requirements

The first step that needs to be done is regulation on videoconferencing in national law –application of VCF without common normative framework is not usual

VCF should not be linked with the consent of all participants in the case - it's the brakes to its application

criminal proceedings generally has greater experience in the application of video-link from civil proceedings

experiences of criminal judges could be very valuable insufficient and expensive technical equipment can be

better utilized with rational use - selecting the date and place of the hearing in which it intends to apply

good national experiences are a precondition for the application of videoconferencing in Regulation