УДК 339.54.012

Human rights in virtual criminal court proceedings

Суконникова Елена Владиславовна – бакалавр Московского государственного юридического университета имени О.Е. Кутафина.

Abstract: The article devotes to issues of the respect for human rights in remote criminal court procedures. The substantive attention has been accentuated several tenets such as the right to a fair trial and the right to defend themselves in person. There are considered crucial features of the proposed amendments to the Russian Criminal Code which reveal alterations in the field of applying of video communication systems, advantages and drawbacks of the suggested novelties and possible consequences of the entry into legal force. Having taken into account the foreign experience of online hearings in particular parts of criminal court proceedings, the practice of Hanguary, Netherlands and United Kingdom were dwelt herein.

Аннотация: Статья посвящена вопросам соблюдения прав человека в уголовном судопроизводстве при применении дистанционных технологий. Акцент сделан на нескольких основополагающих положениях таких, как право на справедливое судебное разбирательство и право защищать себя лично. Рассмотрены ключевые особенности проекта поправок в Уголовно-процессуальный кодекс Российской Федерации, которые затрагивают изменения в области применения систем видеоконференц-связи, преимущества и недостатки предлагаемых нововведений и возможные последствия их введения. Приведен опыт применения дистанционных технологий в отдельных частях уголовного судопроизводства в зарубежных странах таких как, Венгрия, Нидерланды и Великобритания.

Keywords: criminal court proceedings, human rights, video communication systems, remote technologies.

Ключевые слова: уголовное судопроизводство, права человека, системы видеоконференц-связи, дистанционные технологии.

The ongoing Russian criminal legislation comprises rules enabling courts to apply remote technologies in order to get justice. Such procedural matters as a deposition of a witness and victim, review by a court regarding change of jurisdiction, appeal and cassation, solution of issues referring to execution of a sentence, are able to be implemented either immediately, or virtually, in other words, by means of video computer systems.

Particular attention is deserved with the present fundamental principle of a spontaneity in criminal court proceedings enshrined in national regulations as well as in international conventions in accordance with that a convicted person is guaranteed the right to defend themselves in person. Notwithstanding, the Russian laws install substantial restrictions for fulfillment of the aforementioned principle. For instance, providing safety of procedural parties, a judge is eligible to set online participation of an accused person, held in custody, after granting the appropriate motion.

The resembling provision is incorporated into the legislation of Hungary which has been amended due to the pandemic. Hence, if a procedural act involving the personal presence of the persons participating in the criminal proceedings would result in the violation of the rules of the ordered epidemiological isolation, monitoring, isolation or control, and the procedural act cannot be postponed, the court, the prosecution and the investigative authority shall require the presence at the procedural act provided by means of a telecommunication device [1].

13th May 2022 the Russian Ministry of Justice proposed amendments to the existing criminal procedural code. The project of those is currently at the stage of elaborating completion of a rule and forming an ultimate version of a textual draft. According to the preceding document, application of remote technologies is extremely expanded in the criminal court hearings, particularly, the video conference connection.

As it has been mentioned previously, getting the motion the court is eligible to determine how the accused person should take part in the proceedings either remotely or directly. If there appears to be a circumstance for ensuring safety, it has to do with the certain criminal offenses. On the contrary, the amendment allows online participation of the condemned depending on the court standpoint when there are conditions excluding the accused person’s opportunity to be participated in the hearing immediately [2].

The provision makes the leeway for judges as it is able to be expounded quite widely providing the courts with capabilities to trespass on the condemned rights. Therefore, there appears to be a necessity of specification or elimination of the article in order to get rid of judges’ misapplication.

Aside from the sophisticated judicial proxy, versatile corpus delicti could be extended by means of those it is possible to enforce the accused to perform virtually. Instead of felonies embedding such criminal objects as the public safety, the constitutional order and the state safety, the project comprises all offenses dealing with grave and particularly grave crimes.

The novelty for the virtual criminal proceeding encompasses a potential of online participation of everyone summoned to the court hearing in accordance with the motion or the initiative taken by the court. An exception would incorporate only cases handled with the jury where it implies the personal participation of the convicted person.

On the one hand, the given provisions of the amendments grant the access to justice of all parties of the criminal court proceedings, accelerate the process as well as reduce the quantity of violations touching the reasonable period of time of criminal matters’ consideration. Using the provided possibilities, established by the project, it would be fair to point out the overcoming the problem of bringing the accused or condemned people held in custody to court premises, as long as expiration of terms for delivery gets judges to delay proceedings quite frequently.

Paying attention to the European Convention of Human rights, it would be worth to emphasize that everyone is entitled to a fair trial consisting of just and public hearing by independent and impartial tribunal established by law [3]. Furthermore, the International Covenant on Civil and Political Rights enshrines that all persons shall be equal before the courts and tribunals and to be tried in his presence, and to defend himself in person [4].

Personal participation as the principle of the court criminal proceedings has emerged as the core provision of the criminal legislation. It implies impossibility of a rejection in the tenet. Nevertheless, even here it would be tenable to mention exclusions which, definitely, should be least and precisely restricted. Therefore, it is extremely substantial to alter the provision of the project to keep off perilous consequences fostering overindulgence of judges and participants of the criminal process.

Besides, there are other quandaries during applying the novelties which will directly concern the rights of accused people to acquaint themselves with a criminal case. It is perplexing to imagine how to submit to the condemned people written as well as physical evidence as far as there appears to be a paucity of definiteness and certainty whether the convicted people are not subjected by authoritiy’s pressure or strangers are absent next to them.

Taking into account the foreign experience, I would like to accentuate one scientific article ‘Making Remote Hearings Work’ written by Christopher Sharp who regarded a security issue. During one online hearing, where were 9 participants and a judge scattered around the world, the judge had a suspicion that one lay party had someone else in the room. He denied it and there was no way of telling. Plainly this is difficult to police. Perhaps a party can be asked to scan the room with his camera to show it is empty. The judge gave a clear warning at the outset that no-one must record the meeting and set out the ground rules [5]. Notwithstanding, overall, there appears to be doubts whether the party was alone in the room or an arcane present person had influenced the participant and managed to be hidden from the camera.

Examination of evidence comprises a personal perception by the court in order to provide implementation of the tenet of immediacy. According to the rules of the Russian criminal procedure legislation, the judge must examine evidence in person. Parties also take part in researching physical and written materials that provide direct interaction with proof. Several process actions in hearing are not able to exercise virtually as in this case the principle of spontaneity will be roughly demolished. Moreover, evidence terms in relevance, sufficiency, reliability and admissibility, while the court weighs them remotely, will be in question.

A vital role in the criminal proceedings plays a psychological part which occurs in using miscellaneous methods of psychological effects which parties are able to illustrate in hearing affecting, particularly, the judge. A shortage of verbal and visual interaction in the process does not allow us to determine the genuine attitude of the convicted person to, for instance, to their felony or a victim. Of course, psychological influence is not always the place to be, but it can impact on the eventual outcome of the litigation.

Particular attention deserves technical equipment of courts and the quantity of the net because if it was lost it would be complicated to restore it quickly, hence, it would be impossible to conduct the trial. Meanwhile, this circumstance may be used as a misuse taken by participants who possess abilities to prolong review of cases pursuing personal benefits. In such situations, the judge should at least recess during the procedure. If there is no possibility to make contact, the litigation is supposed to be postponed.

The issue of compliance with the tenet of contestability seems to be debatable while one party is taking part in the proceedings in person and other - remotely. For sample, in the implementation of evidence inspection online participants are able to miss significant details of the items due to distorted video images. By the way, there appears to be a risk of the occurrence of occasions when a screen is placed in the wrong way, and consequently, parties do not see each other in the middle of litigation.

A controversial point has been reflected on the convicted person’s right to unimpeded and confidential communication with an advocate while being held in custody or detained with virtual participation. Is there the attorney’s duty to interact with the accused person beforehand? If it is not, how will the court and correctional authorities provide the privacy of conversations of the defense?

Having dwelt the foreign practice, I would like to accentuate the British solutions of the aforementioned issues where the opportunities for discussion are given. For instance, if the defendant is remanded to custody, the advocate must let the court know while still on video and before the defendant is taken to a custody cell. The court will arrange to call the advocate by telephone so that the attorney can talk to the defendant [6].

The Dutch legislation submits the possibility for execution of consultations using by the defense party immediately during the criminal court proceeding. Therefore, private talks with clients can be done by instant messaging or by asking the court for a short break [7]. Although, even if such opportunities are provided, there are no any guarantees whether the confidentiality has the place to be or not as far as the defense counsel is nor able to make sure if the client is not imposed by pressure.

Having discussed the ongoing quandary, I would sum up that video communication applying in criminal litigation definitely facilitates and accelerates the court reviews. However, it is extremely crucial to ensure the least technical requirements in order to escape the impact of external factors such as fragile net connections and sound hindrance. Furthermore, there appears to be the necessity to detail the proposed provisions concerning online hearings. Moreover, the procedural rights are supposed to be protected by a legion of guarantees which will not be allowed to encroach the tenet of just court trial.

References

1. Hungarian Gazette Number 59 Magyarország Hivatalos Lapja Tuesday [Electronic resource]: - Access mode: https://magyarkozlony.hu/dokumentumok/a96e25d459b04cdd5d900c75fa4dbe0c1492f682/megtekintes, March 31, 2020.
2. Draft "On Amendments to the Code of Criminal Procedure of the Russian Federation" [Electronic resource]: - Access mode: https://regulation.gov.ru/projects#npa=127550.
3. European Convention on Human Rights [Electronic resource]: - Access mode: [Electronic resource]: - Access mode: https://www.echr.coe.int/documents/convention_rus.pdf.
4. International Covenant on Civil and Political Rights. [Electronic resource]: - Access mode: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
5. Making Remote Hearings Work [Electronic resource]: - Access mode:https://www.stjohnschambers.co.uk/news/making-remote-hearings-work.
6. Joining a criminal hearing on video as a professional. [Electronic resource]: - Access mode: https://www.gov.uk/guidance/joining-a-criminal-hearing-on-video-as-a-professional.
7. COVID-19: NCC is open for business, but restrictions apply. [Electronic resource]: - Access mode: https://www.rechtspraak.nl/english/ncc/news/pages/covid19-ncc-is-open-for-business-but-restrictions-apply.aspx.