KKO:2021:92 – Participation of a judge and the defendant in a main hearing by video link

Diary number: R2021/389
Issued on: 22 December 2021
ECLI:FI:KKO:2021:92

Background and the issue at hand

In a criminal case relating to aggravated dishonesty by a debtor, the Court of Appeal had conducted a main hearing in the courtroom so that one member of the three-member judicial panel, the parties, and the witnesses had participated in the hearing by video link from another locality.

The issues before the Supreme Court were, firstly, whether a procedural error had been committed when one member participated by video link and, secondly, whether the defendant had consented to remote participation and, if the proceedings using remote participation had been appropriate.

Participation of a judge in a main hearing by video link

The Supreme Court referred to precedent ruling KKO:2021:91, issued on the same day as this ruling (see separate English summary), where it was held that a judge is not allowed to participate in a main hearing remotely. The effects of such procedural error must be evaluated case by case, taking note of e.g. the reasons for the procedure and the extent to which the remote participation has violated the defendant’s rights of participation and defence.

It appears in the record that in the present case the main hearing had been conducted in the Court of Appeal courtroom, where the presiding member of the panel and the member in charge of case preparation had been present in person. The third member of the panel, as well as the parties and the witnesses had participated in the main hearing remotely from another locality, the courtroom of the local District Court. According to the Court of Appeal, the reason for this arrangement had been the prosecutor’s request for remote participation, as the main hearing had to be conducted without delay in between other hearings owing to the imminent retirement of the prosecutor. Moreover, the purpose of the remote participation of one member was according to the Court of Appeal precisely that important procedural principles, such as oral proceedings and immediacy, could be guaranteed.

The Supreme Court noted that the procedural error committed by the Court of Appeal had nor arisen from covid-related health reasons or any other comparable persuasive and acceptable reasons. In addition, the immediate interaction referred to by the Court of Appeal could have been better realised had the entire judicial panel participated in the proceedings in the same courtroom as the parties and the witnesses. As a matter of fact, the procedure adopted by the Court of Appeal was more likely to have caused confusion in the arrangement and the conduct of the proceedings.

The Supreme Court held that the Court of Appeal’s procedural error relating to the manner in which a judge participated in the proceedings was in itself so serious that the case was to be remanded to the Court of Appeal to be heard anew.

Participation of the defendant in a main hearing by video link

The right of the defendant in criminal proceedings to be present in person in an oral hearing is one of the guarantees of a fair trial enshrined in section 21 of the Constitution of Finland and Article 6 of the European Convention on Human Rights. According to chapter 8, section 13(1), of the Criminal Procedure Act a party to a criminal case may participate in an oral hearing remotely over a video and audio link, if he or she consents to the same and the court deems it appropriate. The same provision applies also to the defendant’s counsel.

In the context of evaluating consent as a prerequisite for the use of a video link, the Supreme Court referred inter alia to the case-law of the European Court of Human Rights (e.g. judgment of the Grand Chamber in the case Hermi v. Italy 18 October 2006, paras. 73–76). The defendant may waive the guarantees of a fair trial expressly or tacitly. Either way, the waiver must be definite, it must be voluntary and it must involve minimum guarantees that are proportionate to the significance of the waiver. Moreover, the waiver cannot be contrary to any important public interest. In the assessment of the conduct of the defendant so as to determine whether it constitutes a tacit waiver, it must be shown that the defendant can reasonably have foreseen the consequences of the conduct. The Supreme Court held that the defendants possible consent to participation by video link could be assessed in the light of these criteria in the case-law of the Court of Human Rights.

In the present case the Court of Appeal, before ordering the main hearing, had sent an email to the defendant’s public defender and inquired about the suitability of the proposed hearing date. The Court of Appeal had not asked for consent to remote participation nor indicated that consent should be voluntary or what the consequences of the consent are. Even though the Court of Appeal had summoned the defendant to participate in the main hearing by video link and the defendant’s public defender had not before or even during the hearing indicated to the Court of Appeal that the defendant did not consent, the Supreme Court held that under the circumstances the mere absence of protest did not meet the criteria for valid consent. Accordingly, it was held that the defendant had not self consented to participation by video link nor given such consent for the public defender’s participation by video link.

As regards the appropriateness that also is a prerequisite for participation by video link, the Supreme Court noted that the charge pertained to an ordinary sort of white-collar crime. However, after the judgment of the District Court the case had become very complex and the Court of Appeal had heard in addition to the defendant also the testimony of two new witnesses and received new documentary evidence. The Supreme Court noted that by and large it was to be deemed appropriate that the defendant participates by video link in the main hearing of such a case in the Court of Appeal. In addition, when an order for a main hearing by remote participation is issued, it cannot normally be foreseen that technical difficulties would arise in the video link to the other court locality. In the present case, however, there had been severe technical difficulties, as the connection had been repeatedly lost, also during the hearing of testimony, and the audio connection had been defective. In addition, the video link equipment had switched off in the middle of the closing statement by the defendant’s public defender.

The Supreme Court noted that if technical difficulties hamper the interaction in the main hearing, it is for the court to hear the opinions of the parties on this issue and determine whether the main hearing should be interrupted or postponed.

The Supreme Court held that in the present case the right to a fair trial had not been realised owing to problems in the remote connection. The conduct of the main hearing by video link had also not been appropriate in the sense of the relevant legal provision.

Resolution

The case was remanded to the Court of Appeal to be heard anew, as serious procedural errors had been committed in the remote participation of one member of the Court of Appeal and in the statutory prerequisites concerning the defendant’s consent to, and the appropriateness of, remote participation not being met.