Use of modern day technology in criminal proceedings: chances and risks
Defence lawyers across Europe met in the Danish capital in the ECBA Autumn 2014 Conference devoted to the role of modern technologies in criminal proceedings.
Our chairman, Mr. Hoger Matt, assured in his welcome speech that ECBA will keep protecting common legal values across the EU Member States, intervening and addressing politicians both at the domestic and European level as well as EU responsible bodies. Mr. Matt introduced the topic of the conference and underlined the growing role of IT issues in the criminal area.
Lars Dahlstedt described the Swedish pragmatic approach to use of modern IT technologies. Recording of interrogations and trials is a common practice. As a main rule, the higher courts proceedings consist mainly in observing the video records from the lower courts hearings, one could compare it to “watching a movie in the cinema”. Juvenile victims of sexual abuse or victims of assault, especially women, are usually videotaped and only the video is used before the court, however, the defence is not allowed to ask questions. Witnesses may be examined also by a telephone, which is practical, but such procedure may be difficult in relation to some countries which do not admit Swedish jurisdiction on their territory.
The next speaker, Hans Gammeltoft-Hansen, set out the content of the Danish rules on the use of recordings and video conferences, while his fellow speaker Hanne Rahbæk, an attorney, followed with the description of how these rules are used in practice.Mr. Gammeltoft-Hansen pointed out that asa general principle the participation of the accused in court hearings via a video link must always, with only a single exception, be voluntary. Two types of court hearing completely preclude participation via a video link – hearings about remanding person into custody and first instance hearings with submission of evidence in case where 12 months of unconditional sentence or more is at stake. The principal rule is that the defence counsel must be physically present in the same place as the client. Where the defendant is not present, the defence counsel may be allowed to participate via a video link, if the court finds it “secure”.Ms. Rahbæk pointed out to the fact that Denmark is a small country where you can get everywhere by a car in a couple of hours. She raised a question, why to use video conferences, and replied herself that because of the costs reduction.
These presentations raised a series of interesting questions from the audience such as about guarantee of confidentiality (by secured telephone lines) or involvement of legal interpreters (there is a very limited number of legal interprets for certain languages).
President of Eulita (European Legal Interpreters and Translators Association), Liese Katschinka, gave us an overview of the current work and projects of this “sister” organization of ECBA. She especially emphasized the importance of a pilot project (“LIT Search consortium”) of a European database of legal interpreters and translators enabling, whose main objective is to secure access to legal interpreters and translators across border of EU Member States.
Also current ECBA projects and working groups were presented. Vânia Costa Ramos informed us about the progress in preparations of the EAW (European Arrest Warrant) handbook and assured that any volunteers among ECBA members to prepare the specific national parts of the handbook for defence lawyers are welcome. Chair of ECBA, Mr. Matt, reminded cooperation between ECBA and ERA on trainings for defence lawyers, he further introduced currents steps in the establishment of European Public Prosecutor´s Office (EPPO), which is subject to EU negotiations, and warned before deletions of any part of the procedural rights safeguards. Rebecca Niblock introduced the ECBA response to the proposal for an EU directive on the presumption of innocence, while Dian Brouwer drew the attention to the issue of legal aid and current EU proposal for a respective directive and Robin Grey to another EU directive proposal concerning vulnerable suspects and accused.
The afternoon session, which provoked heated discussion, focused on the topic of compensation for costs and legal fees after a conviction or acquittal. Alexis Anagnostakis introduced the Greek system: if a person sentenced pays the costs, but is acquitted on appeal, the prosecutor of the relevant court must ensure that the costs are reimbursed. Mr. Anagnostakis emphasized that the inability to pay the costs creates an impermissible new criminal offence: non-payment of debts to the State. Therefore, for one act a person can be tried and sentenced twice. Hans van der Wal described that in Belgium the legal aid lawyers receive a fixed fee per case, no matter the volume or complexity of the file.What frustrates him the most, is that a suspect will never receive a compensation after an acquittal. Johnny Veum presented the Norwegian system: if a person charged is convicted, he will normally be ordered to compensate the state for the necessary costs of the case (costs shall only be imposed if it is deemed possible to obtain the payment); if a public prosecution ends in an acquittal, the court shall award the person charged compensation from the state for necessary expenses incurred for his defence.Daniel Roos described the system in Sweden: if the defendant is convicted, he shall reimburse the state for public funds spent on remuneration for his defence counsel; if the defendant is acquitted, the court may award the defendant compensation out of public funds for his costs for defence counsel. Sysette Vinding Kruse explained that in Denmark, if the accused person is acquitted, he will not have to pay any legal costs or fees to his court appointed lawyer; if the person accused is convicted he has to pay both the legal fees and the costs.
As the last point of the agenda followed national reports. Nicola Canestrini introduced the Italian criminal justice system and emphasized possible benefits and risks of the use of modern technologies.
Robert Eager spoke about a new major development in Irish system from the point of view of the protection of suspects in the course of Police interviews - since May 2014, when a request is made by a detained suspect to have his solicitor present, for interview, the request should be exceeded to. Vladimir Hrle presented the delegates the issues in application of the new Serbian Criminal procedure code pertaining tothe use of evidence collected by the defence, the discovery and the cross-examination. He also emphasized the current problems Serbian advocates are facing, due to which they were forced to go on strike. Paul Garlick warned before the dismantling of the criminal justice system in the United Kingdom. He mentioned three key areas of the criminal justice system in England and Wales where the protections afforded to suspects, accused persons and those who have been the subject of unreasonable decisions are slowly being dismantled: legal aid (where the scope of the cuts is frightening); extradition (new rules severely affect the right of appeal) and limitation of the scope for judicial review of the decisions of public bodies. Werner Leitner presented key recent developments in German criminal law, in particular new attempt to implement a criminal sanction systems on corporations, which does not exist in Germany, and study on defence counsel appointment by German courts.
Dinner in the agreeable restaurant provided an opportunity for further discussions and new acquaintances.
Report by Miroslav Krutina
