RESOURCE MATERIAL SERIES No.73

TESTIMONY THROUGH AN INTERNATIONAL
VIDEO CONFERENCE
BASIC IDEAS, RELEVANT LEGAL INSTRUMENTS
AND FIRST EXPERIENCES IN EUROPEJürgen Kapplinghaus*
I. INTRODUCTION
Summoning and hearing witnesses from foreign countries very often proves to be a cumbersomebusiness. It already takes comprehensive organizational measures to provide for the hearing of a witness
who is able and willing to come to the court from abroad. It is even more complicated for the judges (and alsofor the prosecutors and defence lawyers) to travel and hear a witness who is unable or unwilling to come tothe court of another State’s territory in his home country.
For some jurisdictions it is possible to fall back upon written testimony in place of oral testimony; forothers, which are dominated by the legal principles of immediacy and oral hearing, this possibility is only
ultima ratio. Giving up the chance of hearing the witness as legally preferred evidence too quickly would
certainly bring the court trouble - in particular (but not only) concerning the defence lawyers’ reaction - andmost probably provoke appeals. In these situations all efforts have to be taken to ensure the attendance of awitness to give evidence in person and only if it is absolutely clear that these efforts have failed and thewitness is unable or unwilling to attend in person, written evidence may replace the obligation to hear thewitness as the prior evidence.
Many jurisdictions have, in between, discovered the added value of hearings by video conference on anational level and amended their respective criminal procedure provisions. But what about witnesses to besummoned from abroad? On the basis of two EU Council Decisions from 23 November 1995 on the“protection of witnesses in the framework of fighting international organized crime”1 and from 20 December
1996 on “persons collaborating with the judicial authorities in the framework of fighting internationalorganized crime” 2 and most probably influenced by positive experiences in the Anglo3 -American 4
jurisdictions, which have proved an obvious gain in directness compared to the conventional forms ofsummoning and hearing witnesses, the EU Council has also been encouraged to make use of testimony
through international video conferences.

II. LEGAL BASIS
The appearance in the court process of another Member State regarding witnesses, experts anddefendants was first addressed in the European Convention on Mutual Assistance in Criminal Matters from1959, which did not expressly provide for the receiving of evidence in another Member State by videoconference. Neither did it exclude it. The 1959 Convention just did not say anything (when taking intoaccount the technical standards of that time, this cannot be a surprise!). Time to adjust the legal provisions
to the technical pre-conditions, not only in the different national legislations but also at the level of theEuropean Union, was nevertheless ripe long before the EU-Council on 29 May 2000 adopted the Convention
on Mutual Assistance in Criminal Matters between the Member States of the European Union,5 withreference to listening by video conference in Article 10.

*Chief Prosecutor and Deputy National Member for Germany at Eurojust (The Hague, the Netherlands). The opinions
expressed in this paper are his own and not necessarily those of the organization for whom he works, nor his government.
1 OJ C 327 from 23.11.1995, page 5.
2 OJ C 10 from 20.12.1996, page 1.
3 Art. 32 (1a) Criminal Justice Act 1988.
4 Case Harrell vs. State of Florida, 709 So. 2d 1364 (1998).
5 D. J. Dckson “Hearing by Video Conference”, EJN Meeting, Graz, Austria, 12 June 2006.

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Although European Member States were very slow in ratifying the 2000 Convention, the Council did not
try to force them the same way it did with Article 13 of the Convention on Joint Investigation Teams whereit had considered a legally binding instrument more appropriate and adopted a special framework decision(see the author’s second UNAFEI paper titled “Joint Investigation Teams”).
The Council instead trusted in the Member States to manage video conferences on the basis of nationallegislations and was lucky with that. First experiences with video conferences in Europe could therefore
occur long before the 2000 Convention entered into force on 23 August 2005.

III. CONTENT OF ARTICLE 10/CONVENTION 2000
Art. 10, paragraph 1 states that, as a necessary requirement, where it is neither “desirable nor possible
for the person to be heard to appear in its6 territory in person”, the judicial authorities of the requestingState may ask for a videoconference. (By the way, this not limited to hearings during the court or trial
process but is also legally possible during the phase of investigation!) Already this first pre-condition needs
clarification: how shall the issue of ‘desirability and possibility’ be interpreted? There may be lots of practicalreasons why a witness cannot attend the requesting State and where it is therefore more desirable to takethe evidence by video conference in the requested State. However, it is not implied in the text that therequesting State must have previously made all efforts to use traditional means to have the witness attend inperson to give evidence; meant above all to make it easier for the court and the other participants of the trial
to assess credibility and liability of a witness.
A solution to this may be found in paragraph 4 which requires that the witness is summoned to court inaccordance with the national law of the requested State. In this context the witness will, if he or she fails toattend the court and give evidence, be possibly subject to arrest and criminal sanctions for that failure toattend. Additionally, paragraph 8 says that the national law of the requested State also applies if a witness
refuses to testify when under an obligation to do so, or lies under oath. With his or her own national law
being applicable and not the law of the requesting State with which he or she is unfamilar, the witness will
receive some protection. Additionally the witness may decline to answer any question where under the lawof either the requested or the requesting state he or she may be entitled to decline to answer the question.
Further protection of the witness is provided for in paragraph 5 (b), obliging the judicial authorities of bothStates to discuss and agree upon protection measures, if necessary.
In this context, the court has, at least in the majority of European jurisdictions, the obligation to ensure afair trial not only from the point of view of the defendant but also from the perspective of the witness, whowould therefore also enjoy the protection of Article 6 of the European Convention on Human Rights.
Paragraph 2 indicates that the requested Member State shall agree to the request for video conference ofthe witness’s evidence unless it is excluded by national law or the absence of technical capability. Thisincludes a presumption that the requested State will provide the mechanism for the evidence of the witness
to be taken by these means (and that the position of the witness requires it to be considered). Answering aquestionnaire from the European Judicial Network only this summer, 15 of the 25 Member States indicatedthat they are able to provide evidence by video conference within their domestic legislation, three can do soin certain circumstances and seven are unable to do so.
Paragraph 3 contains the basic requirements for a request for hearing by video conference. Concerning
this very short and ‘neutral’ provision, critics object that, in practice, the requesting States, assuming
somehow to perform the procedural act alone, often do not feel the need to elaborate a ‘real’ and completedemand, and also send their request at a very late stage.
On a practical level, paragraph 5 (d) requires the witness to have the assistance of an interpreter.
Paragraph 7 provides that the requesting State shall reimburse all associated costs to the requested State
unless the latter one waives this requirement.

6 Meaning the territory of the requesting State.

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Finally, paragraph 9 leaves it to the discretion of Member States to apply the provions of Article 10, whenappropriate and with the agreement of their competent authorities, to hearings by video conference
involving an accused (suspected) person.

IV. PRACTICAL ISSUES
From the answers to the above mentioned questionnaire of the EJN one can conclude that legal problems
with video conferences are negligible, whereas technical problems have still to be solved.
The largest practical problem is often the non-availability of technical equipment in the court closest to
the place where the witness is resident. A solution can be found, however, if the witness can be persuadedthat it is still preferable to travel a little distance within his home country instead of being required to travelto the foreign jurisdiction, also taking into account giving evidence in a court system of which he or she has
no previous experience and of which he or she could understandably be anxious.
The question of costs should - with regard to Art. 10 paragraph 7 of the Convention 2000 - not be aproblem. Nevertheless it has been stressed in the actual discussions that not all courts are well equippedwith modern technology, and some of them have to hire the necessary equipment to carry out foreign
requests, which leads to the question of whether these additional costs should also be borne by therequesting State.
Time differences within the European Union are another problem and certainly become more importantwith regard to video conferences across the world. And, although during the course of a trial a timetable oforder will surely be drawn up, it is possible that the proposed timetable may become difficult to adhere todue to unforeseen issues arising during the course of the trial. In that case the video link witness’s evidencecannot be taken in time, which may cause frustrations.
Another problem is that of physical evidence. The defence need to be permitted to challenge theevidence of the witness in accordance with the instructions of the accused person but also in accordancewith the national law of the requesting State. This may require the defence lawyer to object to evidence
sought to be lead by the judge or prosecutor. Practitioners may find it strange and difficult to react as theperson is on screen and not physically present in court. It may also be of importance that the witness has toidentify a certain piece of evidence which has been used during the course of the alleged crime. There is aquestion about whether it would be appropriate or not for the witness to be shown that physical evidence byvideo conference or before, for instance by photograph sent prior to the hearing.
Despite all these problems it can be concluded that the authorities in the Member States, having alreadyexperienced good procedural results with the use of video hearings, welcome this new form of providing
legal assistance. Contrary to the experiences with joint investigation teams, the reactions of the competentauthorities in the Member States are positive and without major restrictions. The procedures are not soexpensive, the requests are easy to fulfil and problems with ‘traditional’ requests can be avoided.
It cannot be said better than with the words of a Portuguese colleague, citing the national judges andprosecutors using this instrument being “totally in love with video conferences”.

V. CONCLUSIONSTo pour some water into the sometimes excellent Portuguese wine, hearings by video conference will
only be successful when they are well prepared by clear and focused discussions and agreements between
the requesting and the requested States prior to the hearings. Even if the carrying out of the hearings is nottime consuming, their preparations surely are. At an early stage of bilateral co-operation technicalarrangements must be made, a test run would be desirable, interpreters must be engaged and any likely
objections to be given by the witness need to be discussed and clarified. Also, here one should not forget therole Eurojust can play (see the author’s first UNAFEI paper “Eurojust: Signpost on the Road to Security,
Freedom and Justice in Europe” ), above all in larger transnational (multilateral) cases where the practicalaspects of the case may be discussed at a co-ordination meeting in the Eurojust premises, also with a view tomaking use of a video conference, in detail. This enables the requested State to approach witnesses at an36

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early stage, and to start to make necessary preparations of a technical nature to ensure quick and adequate
arrangements for the requesting State.
Taking all this into account, Art. 10 of the 2000 Convention can be a useful instrument and a real step
forward in the fight against organized cross-border crime.

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