Issues Concerning the Application of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union
The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union1, signed on the 29th of May, 2000 and entered into force on 23 August 2005, currently represents an important instrument governing mutual assistance in criminal matters within European Union.
Giving its nature of public international law act, the legal effects of this instrument depend on the manner in which each state decides to introduce it in its national legal system.
Stating as its aim, improving judicial cooperation in criminal matters between member states, the Convention sets down that the common interest of the member states is to ensure that mutual assistance is provided in a fast and efficient manner compatible with the basic principles of their national law, and in compliance with the individual rights and principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms2.
Structured in five different titles, the Convention firstly establishes the relation with other acts on mutual assistance and the general conditions in which the requests for mutual assistance are transmitted.
Specific forms of assistance, namely restitution, temporary transfer of persons held in custody for purpose of the investigation, the hearing by videoconference or by telephone conference of witnesses and experts, controlled deliveries, joint investigation teams, covert investigators and criminal and civil liability regarding officials are addressed in the second title of the Convention.
While the third and forth part of the instrument are dedicated to the interception of telecommunications and to personal data protection, the final one sets out aspects regarding the territorial application and entry into force of the Convention.
Taking as starting point the provisions of the Convention regarding the use of cross border videoconference, the subsequent paper approaches a series of aspects concerning the applicability of the said procedure in the area of protected witnesses and focuses on the issues raised by its use.
II. VIDEOCONFERENCING AND PROTECTED WITNESSES
1. General considerations regarding witness protection
a) The concepts of witness and protected witness
According to the Council of Europe3, the concept of witness refers to any person, irrespective of her status under national criminal procedural law, possessing information relevant for the criminal proceedings, provided she does not have the status of justice collaborator. The definition expressly includes experts and interpreters.
Given the fact that this definition is stipulated in sources of soft law, an examination of the provisions of the national systems seems to be appropriate, when looking for the content of the notion.
Approaching the concept of protected witnesses in its Resolution of the 23rd of November 1995 for the protection of witnesses in the fight against international organized crime, the Council states that, for the purpose of the resolution, “witness” means any person, whatever her legal status, who possesses intelligence or information regarded by the competent authority as being material to criminal proceedings and liable to endanger that person if divulged.
Consequently, protected witnesses are persons, other than justice collaborators, provided with protection measures by the judicial authorities in respect of the dangerous situation they find themselves into. The differences may only be seen in the protection tools each state chooses to use in order to obtain maximum efficiency.
b) Procedural and non-procedural protection measures
Witness protection represents a process in which witnesses who testify in criminal trials are provided with specific procedural and non-procedural measures aimed at effectively ensuring their safety before, during and after their testimony. 4
A general set of binding provisions regarding the measures for the protection of witnesses at European level has not been drawn so far. The Council of Europe recommends member states, when designing a framework of measures to combat serious offences, to adopt appropriate measures to protect witnesses against intimidation. Special attention has to be given to the proportionality between the nature of the protection and the seriousness of the intimidation of the witness5.
Before seeing what protection measures exactly refer to, we first have to mention that the witness has to be granted protection before, during and after the phase of the criminal trial. Even if, the aim of the testimony is represented by the help provided to revealing the truth and is consequently related to the trial, in respect of the sensitive situation the person finds herself in, the protection measures exceed the trial stage. Therefore, a protection programme has to ensure both procedural and nonprocedural measures of protection.
The procedural protection measures are directly related to the testimony of the witness and are designed to ensure the physical and psychological integrity of the witness and consequently, safe circumstances for a relevant statement. Having as final purpose obtaining relevant pieces of evidence by the judicial authorities, the procedural measures are taken during the investigation (prosecution) stage of the criminal proceedings and also during the actual trial before the court.
Such measures may consist in hearing the witnesses by using special technology which distortions the voice or the image of the examined person, in giving the witness a new identity, under which the hearing will take place, in protecting the statement or the identity of the witness.
Procedural measures would not reached the aimed purpose without them being completed by the nonprocedural measures of protection, which can be taken from a very early stage of the criminal proceedings and can be continued all through the trial and even after its ending. Considered classical protection measures, the nonprocedural measures are usually taken by the police and present great differences between the member states, taking various forms, from surveillance carried out by territorial police to social reinstatement, special economic grant and international relocation.
While a European detailed legislation has not been adopted due to the great differences between the member states, the Council of Europe recommends member states to focus on the procedural measures aimed at preventing the identification of witnesses and shows special attention to protecting witnesses by granting them anonymity.
2. The hearing by videoconference of protected witnesses
When analyzing the possibility of hearing witnesses by videoconference at a cross border level, we should first point out that no binding European legislation has been adopted so far. As a consequence, this procedural matter can be currently approached from two different angles. In order to discover the relevant European legal instruments, we should first examine the provisions concerning the protection of witnesses and secondly, the provisions related to videoconferencing.
Regarding the legislation concerning videoconferencing we should underline that the possibility of hearing witnesses by videoconference is covered by the stipulations of article 10 of the Convention. Designed as a complex of rules governing the process of obtaining evidence with the help of the other member states, the Convention establishes a framework for the procedure of hearing witnesses by videoconference.
Various laws adopted at European level stipulate the use of videoconference in the framework of judicial procedures. These possibilities are insufficiently used due to cultural, linguistic and technical reasons. In most member states, videoconferencing is stipulated in the legislation, but is rarely used in cross border situations, although allowed by law.
If in the domain of videoconferencing the member states have accepted at least a set of guiding principles, witness protection remains a field subject to many debates and, so far, no binding legal document.
Despite this fact, certain steps have already been taken in the European Union, in the form of soft law documents like the Resolution on the protection of witnesses in the fight against international organized crime (1995) and the Resolution on individuals who cooperate with the judicial system in the fight against international organized crime (1996)
The disadvantage of these documents is given not only by their soft law nature, but also by their limited scope, as they only apply to cases of fighting organized crime.
The only binding legal provisions related to witness protection concern the possibility to grant benefits in exchange for information and are contained in the Framework Decision on terrorism and the Council Framework on the standing of victims in criminal proceedings.
b) Situations determining the cross border nature of the procedure
According to the Convention6, if a person is in one member state’s territory and has to be heard by the judicial authorities of another member state, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request the hearing take place by videoconference.
Evidently, the Convention does not only apply to videoconferencing protected witnesses; the text covers both the situation of common witnesses, which find themselves in a situation impeding them to show before the court and that of protected witnesses.
We can first take into consideration the situation of a witness situated in the territory of one member state, granted protection by that member state and whose testimony is necessary in criminal proceedings undertaken by another member state. It is not difficult to think of cases where a person can testify in two different criminal trials, involving two different countries, if we think of the dimensions of organized crime offences and of its international effects.
Secondly, cross border videoconferencing becomes an important tool in the case of relocated protected witnesses. Although seen as an extreme measure, in cases with high level of danger for the witness on the national territory, international relocation may result to be the only effective instrument.
Taking into consideration that no European legislation on international relocation is available yet, the procedure is subject to the cooperation of the interested member states. The witness protection organism of the requesting state has to contact the protection organism of the requested state. The contact can be done either directly or through institutions intermediating cooperation, like liaison officers, home affairs attaches or Europol. Due to the fact that using intermediaries can result difficult, direct cooperation is preferred.
c) The law applied to the hearing by videoconference
The question arising from the bilateral nature of the procedure is how do the legal systems of the two member states practically apply during the same process. Without giving an exact answer, the Convention delivers a set of rules and guiding principles, which member states are bound to take into consideration.
First, we have to point out that the Convention expressly indicates the applicable law for three distinct moments of the procedure, giving priority to one of the two relevant systems of law.
According to the Convention, the law of the requested member state is to be applied to two moments of the hearing. First of all, the judicial authority of the requested member state shall serve summons to the witness following the forms laid down by its law.
Secondly, the requested member state shall take all the necessary measures to ensure that where witnesses are being heard in its territory in accordance with article 10 and they either refuse to testify, when under an obligation to testify, or do not testify according to the truth, its national law applies in the same way as if the hearing took place in a national procedure.
It is during the actual hearing when the law of the requesting member state is to be applied, as the hearing shall be conducted by the judicial authority of the said member state in accordance with is own law.
The observation that has to be made regarding these provisions is that they set out rules regarding the applicable system of law, explicitly indicating the law of which member state has to be followed. These rules are completed by guiding principles offered by the Convention to enable the member states to efficiently collaborate.
The respect for the fundamental principles of law of the requested member state represents the first principle laid down by the Convention. Therefore, although the hearing shall be conducted in accordance with the national law of the requesting member state, the procedure has to correspond to the fundamental law framework of the requested state. It is only natural for the procedure to be carried out in these conditions, given the important role of the requested member state during the hearing and especially in consideration of the fact that the process also takes place in its territory.
The second relevant provision to this part of the analysis concerns the rights of the witness. According to the Convention, the person to be heard may claim the right not to testify which would accrue to him under the law of either the requested or the requesting member state.
If both systems of law have the same approach to the matter no option between the two laws occurs. A choice between the two systems of law only appears in cases where the national criminal procedures have a different approach, meaning that one of them sets an obligation to testify, while the other gives the witness the opportunity to refuse to testify. In these situations the applicable law is only determined by the conduct of the witness, by her option.
d) Obligations of the member states
When it comes to the obligations of each of the member states involved in the procedure, we need to point out that some of the duties are expressly mentioned in the Convention and some can be inferred from its texts.
i) Obligations of the requesting member state
Although not explicitly indicated by the Convention, the first obligation of the requesting member state is to send the requested member state a formal reasoned request, asking for the latter’s assistance for the hearing.
In the situation of a witness who has been previously relocated on the territory of the requested member state, it can be assumed that the “host” member state already possesses the relevant information concerning the witness, her situation and the circumstances of the criminal case determining the relocation. Consequently all these facts shall not be reiterated by the requesting state, who shall only present the grounds of its request, in the sense that the state has to motivate the fact that the only prudent and safe manner to obtain the statement of the witness is by cross border videoconference.
A very different situation takes place when the requesting state desires to take the testimony of a witness, situated in the territory of the requested state and granted protection by the latter. In this case, we consider that the formal request submitted by the requesting state has to contain information regarding the witness, the criminal proceedings requiring her testimony, the reasons according to which the requesting authority finds the testimony significant for the said proceedings.
Depending on the mutual agreement of the parties, the requesting member state might have the obligation to provide the necessary technology for the videoconference. This duty only arises if the requested member state does not posses the technical means to carry out the hearing, but agrees to it, provided the other party ensures all the necessary equipment.
An essential obligation for the requesting state is, without a doubt, to respect the fundamental principles of the other member state. This obligation has to be seen as a duty to act according to the principle of good faith, ensuring that the fundamental framework of the “host state” is respected.
The last obligation of the requesting member state, mentioned by the Convention, is the one to refund all the costs of the procedure.
ii) Obligations of the requested member state
As a correspondent to the obligation of the requesting member state to send a formal reasoned request for the videoconference, the requested member state has a duty to respond to the request.
When the requested state delivers a negative response to the request, we believe it has to be a reasoned one, offering the grounds impeding the state to offer assistance.
After having agreed to the hearing, it is the obligation of the requested member state to summon the witness.
The requested state shall also make sure that a judicial authority will be present during the procedure, having the responsibility to ensure the identification of the witness and, most important, the respect of the fundamental principles of its law.
An important duty of the requested state concerns its legal actions in situations where the witness refuses to testify, when under an obligation to testify or does not testify according to the truth. In theses cases the requested member state has to apply its national law in the same way as if the hearing took place in a national procedure.
On the conclusion of the hearing, the judicial authority present on behalf of the requested member state has the obligation to draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and function of all other persons in the requested member state participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The competent authority of the requested member state has to forward the document to the competent authority of the requesting member state.
Considering that the cooperation between the two states involves sharing protected, confidential data, often processed by the judicial authorities of the requesting member state for the purposes of a particular criminal case, ensuring the confidentiality of such data is an essential obligation for the requested state.
According to the Convention the personal data communicated in respect of the hearing by videoconference of protected witnesses may be used by the requested Member State only for the purposes of the hearing, for other judicial and administrative proceedings directly related to it and if necessary, for preventing an immediate and serious threat to public security.
The same treatment is applied to personal data not communicated, but obtained otherwise, for example during the actual hearing of the witness.
Although the Convention states that the use of personal data obtained by the requested member state in the course of the cooperation, can be used by the requested member state for other purposes, either with the prior consent of the communicating member state or with the consent of the data subject, the protection measures granted to the witness and the fact that his safety exclusively depends on the actions of the national authorities, we believe it is only for the latter to decide whether sharing such information for purposes exceeding the procedure is appropriate or not, irrespective of the consent of the data subject.
If the communication of such information could depend solely on the will of the witness, the protection measure taken in his respect and the criminal proceedings themselves could be easily affected, due to his lack of a proper perspective of the case.
Examining the obligations of the member states participating in the procedure, we can draw the conclusion that the main obligation for both states is represented by the duty to collaborate and act accordingly to the principle of good faith during the entire procedure. This obligation, although not expressly mentioned, can be inferred, taking into account not only the purpose of the Convention, but also some of the provisions of article 10 stating that a mutual agreement between the requesting and the requested member state has to be reached.
e) The limits of the law of the requesting state in respect of the legal system of the requested state
As previously pointed out, the hearing shall be conducted directly by or under the direction of the judicial authority of the requesting member state in accordance to its own laws. Giving the fact that the hearing takes place on the territory of the requested member state, it appears only natural for its system of law to have certain applicability during the procedure. Consequently, even if the hearing by cross border videoconference determines a partial derogation from the principle locus regit actum, the influence of the national system of law of the requested member state can not be totally eliminated.
Taking into consideration these circumstances, the main question arising from the fact that the national law of one member state is applied on the territory of another member state is related to the limits of the applicability of the law of the requesting state.
The Convention states that the hearing by videoconference has to be carried out in accordance with the fundamental principles of law of the requested state. This means that the limit of the applicability of the system of law of the requesting member state is represented by the fundamental principles of law of the requested state.
Defined as a set of guiding statements to which both the structure and the development of the law system subordinate, the fundamental law principles of a state are the result of continuously observing the needs of its society.7 Therefore it becomes mandatory for any procedure carried out in the territory of one state to fully respect the legal framework of the said state.
The main problem originating from this rule is related to the length of the obligation incumbent upon the requesting member state. In other words, is there a limit to the obligation to respect the fundamental principles of law of the requested member state, or do these apply to every step of the procedure?
The Convention does not give a straight answer to this question, creating in our opinion a confusing situation regarding the extent to which the said principles might enter a conflict with the national system of law of the requesting state.
Given the text of the Convention we can reach the conclusion that the respect of the fundamental principles of law of the requested member states implies two distinct requirements. First of all, the use of videoconference itself has to be in accordance with the fundamental principles of law, which basically means that videoconferencing has to be allowed by the national law. Secondly, the hearing has to be done without infringing the said principles.
Taking into consideration the sensitive nature of the area concerning criminal law and criminal procedure law, the great differences between the member states regarding their approach to the matter, the different experiences and legal traditions concerning both the issue of witness protection and the one of videoconferencing, conflicts between the two systems of law can easily occur.
Consequently, the following issue at question concerns the possibility of the requested member state to block the hearing due to the said conflict. In other words we need to find out weather a member state can actually forbid the hearing of a certain witness on the grounds that in a similar, national case the testimony would be contrary to the fundamental principles of its law.
In our opinion the only possible answer to this question is that no straight answer can be given. Any possible conflicts between the legal systems of the member states can only be resolved by mutual agreement, depending on the circumstances of each case and on the priorities of each state regarding its legal system and traditions. Given the great diversity of situations that can be subject to this procedure, detailed, binding rules can become an impediment for cooperation between member states.
3. Problems raised by the hearing of witnesses by videoconference
a) The impact of videoconferencing on the quality of justice
Hearing witnesses by videoconference is meant to improve judicial cooperation in criminal matters between Member States by ensuring mutual assistance in a fast and efficient manner.
In reaching this goal, the forms of mutual assistance between Member States have to be compatible not only with the basic principles of the national laws but also with the individual rights and principles of the ECHR.
Given the differences between the national criminal proceedings of the Member States and the guarantees relevant to the concept of “fair trial”, as regulated by article 6 of the ECHR, a careful evaluation of the impact of hearing witnesses by videoconference on the quality of justice is required.
In what advantages are concerned, the most important facility brought by videoconferencing is that it makes it possible for judges and counsels to interact in a live and direct manner with witnesses located outside the jurisdiction of a certain Member State as if the latter were in the actual courtroom.
As a result, videoconferencing creates an environment as similar as possible to the one where witnesses are physically present in the requesting Member State.
Therefore, a situation in which it is not possible or desirable for the person to be heard to appear in the territory of the Member State where the criminal proceedings take place no longer requires time and money consuming solutions.
Consequently, a hearing via videoconference can be successfully used when a witness is located outside the court’s jurisdiction and it would be too burdensome, financially or physically, to transport the witness to the courtroom8 of the requesting Member State in order to obtain the testimony in question.
The advantages of videoconferencing are even more evident when witnesses are being held in custody by the authorities of the requested Member State or are executing a jail sentence in this state.
Such advantages are the reduction of escape risk and enhanced courtroom safety, increased jail personnel productivity due to the elimination of certain security procedures before and after court proceedings and reduction in custodial transport personnel9.
Although hearing witnesses by videoconference presents numerous advantages, this form of cooperation also raises certain questions and challenges concerning its appropriate use.
One of the challenges of using videoconferences in this area is ensuring that the examination of the witness present in the requested member state follows, as closely as possible, the practice adopted for a witness present in the courtroom of the requesting Member State.
In order to reach this goal several demands must be met.
Firstly, the participants in both countries must be provided with an accurate picture of what is happening in the other courtroom.
Secondly, the audiovisual equipment must be highly reliable and safeguarded against loss, intrusion or any unlawful form of processing.
Finally, eye contact must be imitated as far as possible during the hearing. All participants in the courtroom of the requesting Member State must have an equally great impression of eye contact with participants present in the requested Member State.10
Videoconferencing used in criminal proceedings also poses the challenge of the principle of fair trial. This challenge does not only emerge from the practical limitations of videoconferencing but also from its possible effects on the behaviour and perceptions of the witness, defendant, judge, and other courtroom participants.
Therefore, the technology at hand in the requested Member State should be used in such a way to ensure that the quality of the criminal proceedings is not affected and all the rights of the accused person are respected.
Nevertheless, the use of videoconference in hearing witnesses brings forth certain issues concerning both the person that is to testify and the accused person and also the way in which the criminal proceedings, as a whole, are affected.
b) Issues raised by videoconferencing concerning the witness
When using videoconferences for hearing witnesses, the objective should be to seamlessly integrate the videoconference session taking place in the requested Member State with the criminal court proceedings in the requesting Member State.
Nonetheless, the particular situation the witness finds himself in and the actual hearing by videoconference generate certain procedural issues that can affect both the rights of the witness and his legal situation.
Such issues are: the administration of the oath, the applicable law in case of false testimony, the right of the witness to confidentially communicate with his counsel and the potential effects of videoconferencing on the witness’s perception of the criminal proceedings.
In order to make a pertinent analysis of these issues we will make use of a hypothesis where a French criminal court addresses a Romanian criminal court a request for mutual assistance regarding the hearing by videoconference of a witness, executing a 10 year jail sentence in a Romanian prison for drug trafficking. The criminal proceedings taking place in France concern a person also accused of drug trafficking. The Romanian witness is thought to have knowledge of the criminal activities of the defendant as it is believed that they have both participated in international transportation of illegal drugs.
Giving the fact that the witness is imprisoned in the requested member state and the fact that testifying against the defendant may pose her life or physical integrity at risk should the witness appear in person in the requesting member state the Romanian authorities set up a videoconference for hearing the imprisoned witness within the prison facility.
i)The identification of the witness and her right not to testify
As settled in the national legislations of the Member States, the first step to take when hearing a witness is identifying the person called to testify.
In the case of hearing witnesses via videoconference the Convention states that it is the judicial authority of the requested Member State present during the hearing that is responsible for ensuring the identification of the person to be heard. Therefore, in the hypothetical situation presented above it falls within the obligations of the Romanian authority to ensure the identification of the witness.
The issue that arises in connection to the identification of the witness is this person’s right to refuse to testify.
According to the Convention, the hearing shall be conducted directly by or under the direction of the judicial authority of the requesting Member State in accordance with its own laws, in our case according to the French legislation.
However, the person to be heard may claim the right not to testify which may accrue to her under the law of either the requested or the requesting Member State.
Consequently, the witness may make use of the provisions of the legislation of any of the Member States involved, be it Romania or France.
Moreover, each Member State shall take the necessary measures to ensure that, where witnesses are being heard within its territory in accordance with this article and refuse to testify when under an obligation to testify, its national law applies in the same way as if the hearing took place in a national procedure.
Thus, the stage of the identification of the witness is very important for the outcome of the criminal proceedings as it is in this stage that the judicial authorities establish whether the witness is under an obligation to testify, whether she has the right to refuse to testify and also to establish the degree of objectivity that can be associated with the actual testimony.
In our case, if the witness wishes not to testify she has the opportunity to use the provisions of both the French and the Romanian law. However, in case the opportunity to refuse the testimony is not offered by either legal system, the refusal of the witness will be sanctioned by the requested member state, namely Romania.
Following through with the analysis another issue arises: the case in which the requested Member State’s legislation provides no sanction for the unjustified refusal of the witness to testify while the requesting Member State’s legislation provides such a sanction.
This is the case of the Romanian and French legislations. According to the French legislation11 witnesses have an obligation to testify and when refusing the testimony they may be obligated to pay a fine.12
As opposed to the French legislation, the Romanian one provides the court with the possibility of sanctioning witnesses only when they do not respond to the summons of the court, but not when they choose not to testify in an unjustified manner.
Consequently, by making use of the hearing of the witness via videoconference, the French court might loose the procedural possibility of “constraining” the witness to testify.
Thus, the sanction stipulated by the legislation of the requested Member State can be avoided by making an appeal to the legislation of the requesting Member State as the witness can also make use of the legislation of the latter.
In other words, the sanction stipulated in the legislation of the requested Member State finds a safeguarding clause in the legislation of the requesting Member State.
ii)The administration of the oath and the prosecution of false testimony
Other issues that are to be addressed concern the authorities who should administer the oath or the warning that the witness must tell the truth and the jurisdiction who should prosecute false testimony, should it occur.
In what the prosecution of false testimony is concerned, the Convention states that each Member State shall take the necessary measures to ensure that, where witnesses are being heard in its territory in accordance with this article and do not testify according to the truth, its national laws applies in the same way as if the hearing took place in a national procedure.
Thus, the Convention acknowledges the locus regit actum principle. In other words, in case of false testimony committed by the witness heard via videoconference, she will be exposed to the same sanctions as if she were being heard in a common procedure. In this case, it is the law of the requested Member State the only one that applies,13in our case the Romanian one.
In what the administration of the oath is concerned, the Convention does not expressly stipulate which state’s obligation it is to do so. The only existing reference in relation to the oath is that the judicial authority of the requested Member State shall, on the conclusion of the hearing, draw up minutes indicating any oaths taken, document that is to be forwarded to the competent authority of the requesting Member State.
Given the partial silence of the Convention, one must turn to the systematic and the teleological forms of interpretation in order to establish the Member State that is held to administer the oath.
Consequently, a conjugated interpretation of articles 10 paragraphs 8 and 6 is required. As previously mentioned, according to the locus regit actum principle it falls under the jurisdiction of the requested Member State to prosecute false testimony, should it occur.
False testimony, in itself, represents a violation of the oath given by the witness before the testimony. If the prosecution of false testimony is to be conducted following the legislation of the requested Member State, implicitly the administration of the oath would have to fall within the jurisdiction of this state.
This interpretation is supported by the stipulations of the Convention, stating that the judicial authorities of the requested Member State shall draw up minutes indicating, among other data, the identity of the person being heard and any oaths taken.
As already shown, the obligation of identifying the witness belongs to the requested Member State. As a consequence, the requested Member State has the obligation to indicate in the minute the information that its judicial authorities are responsible for.
In conclusion, it falls under the jurisdiction of the requested Member State to administer the oath of the witness and to prosecute false testimony, according to its own national law. In what the hypothetical case is concerned it is the obligation of the Romanian authorities to administer the oath of the witness ad draw its attention on the legal consequences of false testimony.
iii) The registering of the witness’s testimony and the witness’s signature
One other issue arising from the use of videoconferencing for hearing a witness is which judicial authorities are in charge of registering the witness’s testimony in writing and how can the witness actually verify and sign the written statement.
For example, both the French and the Romanian legislation stipulate this phase of the criminal proceedings, finding it necessary in order to have the written statement of the witness on file and to ensure that the witness’s verbal testimony completely corresponds to the written one.
The Convention, however, has no stipulations regarding the registering of the witness’s testimony and his signature. In this case, in order to establish which judicial authorities will register the testimony, we must turn to the provisions of Convention that stipulate that the hearing shall be conducted by or under the direction of the judicial authority of the requesting Member State in accordance with its own laws.
Consequently, in our hypothetical case it falls within the jurisdiction of the French court to register the testimony of the witness, when required by its law. As such, the witness will give her statement via videoconference from the Romanian prison and the French judge will dictate the statement to the court clerk who will draw up the minute.
If the issue of the registration of the testimony is resolved by applying article 10 paragraph 5c) of the Convention as a general rule, the same can not de done in what the verification of the written statement by the witness is concerned, or his signature, for that matter.
In order for the witness to verify the written statement, he would have to have access to the minute drawn up in a different Member State. This can be achieved in various ways such as sending the minute via email or fax directly to the room in which the witness is physically present. This will ensure an immediate exchange of the minute without any extra time or money being spent.
One other way in which the witness can come into contact with the minute drawn up in the requesting Member State is the use of document cameras. This technology is used in courtrooms to present evidence. The document camera projects paper evidence via televised images on one or more display screens. They are simple to use and do not require computers.14
In what the witness’s signature on the written statement is concerned, given the silence of the Convention, practical solutions must be found depending on the legislation of each Member State involved and the technology at hand.
One of the means by which the witness could send his signature to the requesting state is simply faxing back the signed minute after being read and checked.
One other solution would be for the judicial authorities of the requested Member State to enclose a reference of the fact that the witness has read and approved the written statement in the minute they draw up.
These are all practical solutions that can be used in order for the witness to comply with his obligation of verifying the written statement and signing it if no objections are raised.
However, in our opinion, a simple oral statement of the witness, agreeing with the minute, statement given via recorded videoconference is sufficient as the recording can be checked at any time. The signature of the witness in material form is needed in order to ensure the fact that the witness will not, at a later time, claim the fact that what has been registered does not correspond to the truth. Whereas, in the case of videoconferencing, this risk is excluded as the statement of the witness is audio and video recorded and can be checked at any given moment.
iv) The confidentiality privilege of lawyer-client relationship
The examination of the witness present in the requested Member State must follow as closely as possible the practice adopted when a witness is in the actual courtroom of the requesting Member State.
A courtroom is an area where communication between counsels and their clients during the criminal proceedings is of primary importance.
Furthermore, considerable importance is also attached to ensuring that each participant present in the courtroom can clearly see and hear all the other participants and observe both verbal and non-verbal reactions.
Special attention must be paid to these aspects when the hearing of a witness takes place via videoconference as the judge of the requesting Member State has to conduct the hearing in such a way as to allow witnesses to consult their counsels without the judge or third parties overhearing.
The French legislation makes an important distinction between the “regular” witnesses and the “assisted” witnesses. The difference between the two types of witnesses is given by the fact that there are certain clues as to the participation of the “assisted” witness in the investigated crime although he is not being prosecuted.
If the “regular” witness does not have the right to the assistance of a counsel, the “assisted” one has this legal right as is not held to the administration of the oath according to the provisions of article 113-7 of the Criminal Procedure Code.
In our hypothetical case the hearing shall be conducted in accordance with the laws of the requesting member state namely the French legislation.
Consequently, the witness called to testify via videoconference falls, according to the French law within the definition of an assisted witness as the witness of Romanian nationality is thought to have participated with the defendant in international transportation of illegal drugs.
As such, it is the obligation of the French judge to ensure that, even though the hearing takes place by videoconference and it must be conducted in such a way as to ensure that each participant can see and hear all the other participants clearly and observe both verbal and non-verbal reactions, the witness can consult with her counsel without the judge or third parties overhearing.
It is up to the judge to decide the manner in which the hearing is to take place and, as a result, to decide in each case, the ways in which the audio-video signals are to be transmitted as to offer the witness and her counsel the opportunity to have private consultations during the criminal proceedings.
c) Issues raised by videoconferencing regarding the accused
As pointed out in the preamble of the Convention, any form of mutual assistance, including the hearings of witnesses by videoconference, has to be compatible with the basic principles of their national law and in compliance with the individual rights and principles of the ECHR.
As stated in article 6 paragraph 2 of the Treaty on European Union “the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community Law”.
Taking into consideration the important role played by the ECHR principles and its Court’s case law in interpreting the European Community Law (as revealed by the recent development of the jurisprudence of the European Court of Justice) the analysis of the implications of videoconferencing on the rights of the accused imply an examination of the ECHR standard.
i) Minimum standard on protected witnesses and the right to a fair trial
One of the most important aspects that the judicial authorities must ensure at all times is the balance between the witness’s right to protection and the defendant’s right to a fair trial.
In order for the fairness of the trial to be assured, three general principles must be respected during the judicial process of administrating evidence:
First of all, all parties must have the adequate possibility to directly question the witnesses used in the proceedings.
Secondly, the national court must directly examine the witnesses proposed, in order to form its own opinion on their reliability and credibility.
Thirdly, the proceedings must be adversarial and there has to be an equality of arms between the prosecution and defense. The right to an adversarial trial means that in a criminal case both the prosecution and the defense must be given the opportunity to have knowledge of and comment on the submitted observations and the evidence adduced by the other party.
ii) Anonymous witnesses
One of the most debated matters in the ECHR case law, regarding hearing protected witnesses is the use of anonymous witnesses.
The European Court considers that using anonymous witnesses in criminal proceedings can be analyzed as a violation of article 6 of the ECHR. However, such use is not under all circumstances incompatible with the Convention. Giving the important difficulties the defense faces when the identity of the witness is not revealed during the trial, article 6 requires that the disadvantage faced by the defense be balanced by the criminal procedure.
In one of the first judgments dealing with the use of anonymous witnesses15, the Court held that, as a principle, all pieces of evidence must be produced in the presence of the accused during a public hearing, with a view to adversarial argument.
However, this does not mean, that in order to be used as evidence, statements of witnesses should always be made in public hearings in court. Using statements obtained in the pre-trial stage is not in itself inconsistent with article 6, provided the rights of the defense are respected.
Such rights require that the defendant be given an adequate and proper opportunity to challenge and question the witness giving testimonies against him, either at the moment of the statement or at some later stage of the proceedings.
Consequently, allowing for the witness to be heard only by the police and an examining magistrate, in the absence of the defendant and his counsel represents an infringement of the right to a fair trial, resulting not only from refusing the opportunity to challenge the statements but also from the impossibility of the judge to evaluate the reliability of the witness.
Furthermore, grounding a conviction solely on the evidence produced by anonymous witnesses involves limitations on the rights of the defense which are irreconcilable with the guarantees contained in article 6.
Assuring a balance between the need for protection of the witness and the right to a fair trial of the accused implies a previous examination of all circumstances of the case. Such an examination can lead to the conclusion that the absence of the defendant during the questioning of the witness does not contravene to the requirements of a fair trial16.
Stating that although it is clearly preferable for the accused to attend the hearing of the witnesses, the European Court admits that the national court can be entitled to consider that the interests of the accused are in this respect outweighed by the need to ensure the safety of the witnesses, as long as the handicaps of the defense are sufficiently counterbalanced.
The fact that the anonymous witnesses are questioned during the preliminary procedures by a investigative judge, aware of their identity and that the counsel of the defendant has the possibility to ask the witness whatever questions he believes to be in the interest of the defense, except the ones that may lead to the disclosure of their identity, questions that are completely answered, can represent enough guarantees to counterbalance the lack of confrontation.
iii) Relevant aspects in Romanian legislation
According to the Code of Criminal Procedure where sufficient evidence or solid clues reveal a serious threat for the safety of the witness, the judicial authorities can offer her a new identity under which she can present herself before the national court.
The national provisions offer substantial guaranties, conditioning the granting of a new identity on the existence of sufficient evidence or solid clues. Therefore a general fact such as the aggressive conduct drug dealers usually develop cannot represent sufficient grounds, although such an argument has been considered sufficient by the Court17.
When no reasonable proof of the danger the witness finds herself in can be produced, keeping her identity a secret infringes article 6 of the Convention, if the measure is solely grounded on the allegations of the witness regarding the reputation of the accused and his own fear of the latter’s revenge18.
A similar problem can be noted in the Romanian legislation, allowing the injured party to be questioned under a false identity without needing evidence to prove that her safety is in danger19. The cause of such a possibility is determined by the presumption of vulnerability of the victim, making it unnecessary for a real danger regarding the safety of the victim to be proven.
Equally important in assuring the fairness of the criminal trial is the fact that the Romanian national courts cannot use such statements as the sole grounds of a conviction, when no other evidence to support the incriminating testimonies can be produced, as settled by the ECHR as well.20.
However, the national provisions do not offer an adequate and proper opportunity for the accused to challenge and question a witness testifying against him, depriving him of the possibility to organize a proper defense and undermine the reliability of the witness.
iv) Hearing witnesses using technical means
According to the ECHR case law hearing anonymous witnesses by means of such technical devices offers sufficient safeguards and respects the balance that has to be assured in this matter.
The advantages of questioning witnesses by videoconference have been widely analyzed by the Court in a case21 concerning charges of sexual abuse. Given the distress suffered by the victims testifying during criminal proceeding regarding sexual offences videoconferencing has been seen as a reasonable protection measure provided that it can be reconciled with an adequate and effective exercise of the rights of the defense.
Considering the fact that the interview given by the witness with the help of technical devices in an adjacent room offered the defendant’s counsel the possibility to cross-examine the witness, that the videotape of the first police interview was shown during the trial and that the record of the second interview was read out and played before the first instance court and also before the court of appeal, the accused was granted the possibility to challenge the witness’s statements and his credibility in the course of the criminal proceedings.
It is therefore essential for the defendant to be offered the possibility to question the witness, in order to test his reliability and credibility, even if as a supplementary safeguard such questions are addresses by her counsel.
Such possibility implies a direct questioning of the witness, as the European Court has already stated22. As a consequence, relying on records of statements made during the pre-trial investigation and including such statements in the court’s case file, without proceeding to further examination of the witnesses and without granting the same possibility to the defendant evidently contravenes to the concept of a fair trial. The fact that the national court has the possibility to directly notice the witness’s conduct when being examined, with the help of the recordings, is not sufficient to counter-balance the handicaps faced by the defense.
Special consideration has to be shown to cases where members of the police force are being heard as anonymous witnesses23. Although recognizing that their interests deserve protection under the ECHR, the Court emphasizes that their position is to some extent different from that of a disinterested witness or a victim.
Due to the fact that police officers have a general duty of obedience to the State's executive authorities and are usually linked to the prosecution, their use as anonymous witnesses should be resorted to only in exceptional circumstances.
On the other hand, given the nature of their duties, particularly in the case of arresting officers, testimonies of police officers may be essential for criminal investigations, but threatening for the officers. That is why the Court recognizes that, in principle, provided that the rights of the defense are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as not to impair his usefulness for future.
Nonetheless, placing the examined police officers in a separate room with the investigating judge, excluding the accused and even their counsel and carrying out the hearing via sound link, exceeds the need for protection and creates an disadvantage for the defense, which is prevented from observing their demeanor under direct questioning, and thus from testing their reliability.
The procedure of questioning protected witnesses through videoconference, with the voice and the image being distorted24, satisfies the guaranties of the ECHR, as long as the judge does not base the conviction entirely or to a large extent on such testimonies.
Providing witnesses with adequate protection can play a crucial part in bringing offenders to justice, since the successful conclusion of each stage in criminal proceedings often depends on the cooperation of witnesses.25
Giving the fact that the use of cross border videoconferencing in hearing such witnesses presents a series of particular features and raises important issues regarding the interests of the participating states, the individual rights of the parties involved in the criminal proceedings and the purposes of the investigations, we believe that an effective use of the said procedure can only be realized when having a binding legal framework at European level, to ensure a set of rules for its functioning.
Considering the close connection between the use of videoconferences in hearing protected witnesses and the larger area of witness protection, we believe the matter should be legally approached in the context of the latter and therefore should be granted European legislative support in a document addressing the general issue of witness protection.
What seems to be the current feature of this judicial matter is the lack of consensus at European level as pointed out by the Commission who also acknowledges that creating a binding instrument represents a real challenge due to the great varieties of legislative and administrative structures in the member states and the continuous development of the area.
Taking into consideration the sensitive area of criminal matters and the need to ensure both the maximum respect for the legal traditions of the Member state, such a binding document could only establish a minimum set of rules, providing a standard member states would feel safe to introduce.
This standard could only reflect the aspects member states currently accept as necessary for an efficient cooperation in the area of justice and home affairs. Consequently, the applicability of measure regarding cross border videoconferencing could only be introduced in connection to serious offences, generating large effects at European level and determining the need for constant cooperation, such as organized crime, terrorism or money laundering.
Taking into account the need for a real, solid commitment of the member states, such a document should take the form of a framework decision. Setting an obligation for member states, regarding the aimed result, the framework decision allows them to choose the most appropriate form and means to ensure its efficiency and therefore represents the only feasible manner to reach a compromise between the requirements of establishing a binding legislation and the respect for the legal traditions of member states.
The feasibility of such a legal instrument has to be analyzed in respect of the changes the Treaty of Lisbon will introduce when entering into force. Providing the EU with the legal framework and tools necessary to meet the ever growing European challenges, the treaty facilitates EU action in the area of justice and home affairs by the abolition of the existing separate policy areas that characterize today’s institutional structure and especially by introducing the qualified majority voting and the co-decision as general rules in this field.
An important step towards developing the EU legislation in the area of witness protection has already been made during the meeting of the European Commission’s experts in witness protection held in Brussels on the 5th of March 2007 with a view to drawing up a framework decision in the specific field of international relocation.
Designed as a set of common criteria for admitting a witness to a protection programme, the proposal for framework decision describes the general principles currently applied in the EU together with the standards proposed by EUROPOL.
Although the act has no binding power for the moment, examining its provisions already raises interesting issues regarding its effects on the area covered by the Convention and shows a more practical focus on the specific problems of witness protection.
1. Convention established by the Council in accordance with article 34 of the Treaty on the European Union on Mutual Assistance in Criminal Matters between the Member States of the European Union
2. Commission working document on the feasibility of EU legislation in the area of protection of witnesses and collaborators with justice /* COM/2007/0693 final
3. Resolution of the Council of 23 November 1995 on the protection of witnesses in the fight against international organized crime
4. CE Recommandation (2001) 11 of the 19th of september 2001
5. CE Recommandation (97)13 of the 10th of september 1997 on the intimidation of witnesses and the right of the defense
6. Recommendation Rec(2005)9 of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice.
7. Commission’s Communication to the Council, to the European Parliament and to the European Economic and Social Committee – Towards an European Strategy in the field of E-Justice, Bruxelles, 30.5.2008 COM(2008)329 final
8. Resolution on individuals who cooperate with the judicial process in the fight against international organized crime
9. Council framework on the standing of victims in criminal proceedings
10. Proposal for framework decision on improving the international relocation of protected witnesses
11. Framework Decision on terrorism
12. The Council Framework on the standing of victims in criminal proceedings
II. The European Court of Human Rights Case Law
1. ECHR, Case Kostovski v. The Netherlands, 20 November 1989
2. ECHR, Case Doorson v. the Netherlands, 26 March 1996, paragraph 74
3. ECHR, Case Krasniki v. The Czech Republic, 28 February 2006, paragraph 80
4. ECHR, Case Visser v. The Netherlands, 14 February 2002, paragraph 43-47
5. ECHR, Case Doorson v. the Netherlands, 26 March 1996, paragraph 74
6. ECHR, Case Krasniki v. The Czech Republic, 28 February 2006, paragraph 80
7. ECHR, Case Visser v. The Netherlands, 14 February 2002, paragraph 43-47
8. ECHR, Case Van Machelen and others v. The Netherlands, 18 March 1997, paragraph 56-65
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