KKO:2021:91 – Participation of a judge in a hearing by video link

Diary number: R2021/162
Issued on: 22 December 2021
ECLI:FI:KKO:2021:91

Background and the issue at hand

The Court of Appeal had conducted a main hearing in a case involving two counts of murder and issued an interim judgment where it found the defendants guilty as charged and ordered the mental examination of the defendants. Upon receipt of the results of the mental examination, the Court of Appeal had continued the main hearing; one of the three members of the judicial panel had participated in this hearing by video link owing to covid-19 quarantine.

The issue before the Supreme Court was whether a procedural error had been committed when one of the three members of the judicial panel participated in the continued main hearing by video link.

Findings and conclusion of the Supreme Court

The law contains no provisions on the participation of a judge in a hearing by video link. No such provisions have been adopted even because of the covid-19 pandemic or for any other exceptional circumstances. In contrast, over the course of a series of legislative reforms begun in 2003, the law now contains detailed provisions on how the parties, witnesses and experts may participate in a main hearing by video link.

The Supreme Court noted that criminal and civil procedure in Finnish court is based on the principle of immediacy. According to this principle, the participants in an oral main hearing are in immediate interaction with one another. Nevertheless, this principle is not absolute, as the law contains provisions on situations where the parties may participate in the hearing or testimony may be heard by video link. Such participation is considered to correspond to participation in person.

Unlike the measures taken with respect to the parties, witnesses and experts, there have not been any legislative measures to depart from the principle that judges are expected to participate in main hearings in person. For instance, it is provided in chapter 6, section 11(1), of the Criminal Procedure Act and in chapter 6, section 1(2) and (3), and chapter 26, section 25, of the Code of Judicial Procedure, that only a judge who has been present in person throughout the main hearing is competent to participate in the decision in the case. The Supreme Court held that, in the absence of express legislation on an important issue of principle, mere practical reasons do not entitle a judge to participate in a main hearing by video link.

The Supreme Court held that, under current legislation, a judge is not allowed to participate in a main hearing by technical means.

Effects of the procedural error in the Court of Appeal

The judicial panel in a Court of Appeal is composed of three members. According to chapter 2, section 12, of the Code of Judicial Procedure, if, after the beginning of the main hearing, one of the members is prevented from participating, the main hearing may be continued and the case decided also by the remaining two members.

However, the procedure in the case at hand had been such that one member had participated in the continued main hearing by video link even though, as noted, this is not allowed. The Supreme Court noted that participation by video link did not mean that the judge had been absent, but rather that the procedure had been erroneous.

The law does not contain provisions on the assessment or consequences of various procedural errors. The Supreme Court cited its earlier case-law and noted that the legal consequences are to be assessed in the light of the general principle governing procedural errors, namely that note should be taken of whether the procedural error had materially affected, or if it could be assumed to have so affected, the actions taken by the parties or the outcome of the case. In order to safeguard the right to a fair trial, breaches of important procedural rules or principles have in many other situations led to the case being remanded to be heard anew.

Section 21 of the Constitution of Finland and Article 6 of the European Convention on Human Rights Convention (ECHR) guarantee for everyone the right to a fair trial, According to Article 6(3)(c) and (d) ECHR, the defendant in criminal proceedings has the right to defend himself in person and to examine or have examined witnesses against him. These minimum rights are exercised in immediate interaction with the judges who will decide the case. The defendant may voluntarily waive the guarantees of a fair trial. But, in contrast, the court cannot encroach on the defendants’ rights of participation and defence by way of some of the judges participating remotely.

There is no case-law from the European Court of Human Rights on the issue of some judges not participating in oral proceedings in person, but rather remotely. Instead, there is established case-law concerning situations where the composition of the court has changed during the proceedings. Even though this constitutes a violation of the principle of immediacy, it has not always been held that the right to a fair trial has been violated (order in case P.K. v. Finland, 9 July 2002 and judgment in case Škaro v. Croatia, 6 December 2016). In such cases, the Court of Human Rights has looked into the fairness of the trial holistically, so that the immediacy of the proceedings has been considered in the light of the circumstances, such as the reason for the change of judge, the significance of the testimony received earlier, and the other guarantees of a fair trial.

The Supreme Court held that a judge’s remote participation in a main hearing in the absence of a provision allowing for such procedure constituted a violation of the process rights of the parties and the immediacy of proceedings. Moreover, the conduct of proceedings in derogation to the relevant legislation may weaken the public credibility of the courts. For these reasons, the procedural error that had been committed was by and large to be considered serious. However, it should be evaluated in each case whether the remote participation of the judge has constituted such a serious violation of the guarantees of a fair trial that the main hearing should be conducted anew. In this evaluation, due note should be taken of the case-law of the Court of Human Rights referred to above. Due regard could be given to the reason for the remote participation, to the degree to which the rights of participation and defence had been realised and to the stage of the proceedings where the violation of the principle of immediacy had occurred.

The Supreme Court noted that the procedure adopted by the Court of Appeal, regarding participation by video link, had arisen merely from the circumstance that one of the members of the judicial panel had been in covid-19 quarantine and therefore could not participate in person in the continued main hearing in the courtroom. The use of the video link had therefore been based on a persuasive and acceptable covid-related reason. The legally allowed procedure where a two-member panel can decide the case would have been available. The right of the defendants to immediate interaction with the members of the Court of Appeal, as well as their other rights of participation and defence had been realised in an appropriate manner in the earlier stage of the proceedings. At that stage, opening statements had been made, documentary evidence and oral testimony received and closing statements regarding the completed stage of proceedings made. The parties had had the opportunity to present their case and evidence to all three members of the panel, who could then base their decision on their own, immediate observations on the evidence. In the continued main hearing, the Court of Appeal had given the parties the opportunity to present arguments regarding the results of the mental examination and to make their closing statements. The issues at hand in the continued main hearing had been of such a nature that the remote participation of a judge in their consideration could not as such be deemed to have had any essential effect on the realisation of the principle of immediacy. There was nothing in the case that would indicate that the procedural error had compromised the defendants’ right of defence or that it had had a material effect on the proceedings or decision-making in the Court of Appeal.

Resolution

After considering the conduct of the proceedings in the Court of Appeal as a whole, the Supreme Court held that the procedural error was not so serious that the interim judgment and judgment of the Court of Appeal should be vacated and the case remanded to the Court of Appeal to be heard anew.