doc. dr. sc. Aleksandra Maganić, Pravni fakultet
Zagreb
BENEFITS
speed
easier access to other
courts
 availability of
witnesses who are
located in other
Member States
 savings
 effectiveness of
procedure
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DISADVANTAGES
the high cost of
equipment
 training
 technical problems
 problems in
identification
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National legislation show very large
differences:
1. Countries where is no legal framework for
the implementation of videoconferencing
2. Countries where the legal framework
exists but there is no technical equipment
3. Countries where the use of video links is
very good accepted
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The Relationship between the Hague Convention and
Regulation:
Regulation explicitly provides for the application of
videoconferencing (Art. 10/4)
Hague Convention regulates only that
it will follow a request of the requesting authority that a special
method or procedure be followed, unless this is incompatible
with the internal law of the State of execution
or is impossible of performance by reason of its internal practice
and procedure or by reason of practical difficulties.
(Art. 9/2)
Regulation shall in relation to matters to which it applies, prevail
over other provisions contained in bilateral or multilateral
agreements or arrangements concluded by the Member States
(Art. 21/1).
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Are the national provisions on the videoconference necessary or
not?
In principle videoconferencing is prescribed in the rules of civil
procedure
WHY IST THAT IMPORTANT?
In terms of Regulation, the courts of the Member States can be
REQUESTING COURT and REQUESTED COURT
As the requesting court – may ask the requested court to use
communication technology at the performance of the taking of
evidence (videoconference and teleconference) – Art. 10/4
The requesting court may call for the request to be executed in
accordance with a special procedure provided for by law of its
Member State – Art. 10/3
The requested court shall execute the request in accordance
with the law of its Member State (Art. 1/11, 10/2).
 The requested court shall comply with such requirement
unless;
 this is incompatible with the law of the Member State, or
 by reason of major practical difficulties
 1. Countries without legal framework for VCF
 Does that mean that requested courts may refuse
videoconference, if this issue is not regulated by their
national law on the grounds that is incompatible with the law
of the Member State of the requested court ?
 In this case, only possibility to made available technical
means are not sufficient
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2. Countries that regulated VCF but tehnical
equipment is not available
Possibility to made available technical means
are not sufficient because the judges do not
have practical knowledge of the VCF
The requested court may refuse to comply with
the requirement for major practical difficulties
3. Countries that regulated VCF and have
experience in the application of VCF
The requested court shall execute the request in
accordance with the lex fori.
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Other provision which prescribes encouraging the use of
communication technology such as VCF is in connection
with direct taking of evidence by the requesting court.
Where a court requests to take evidence directly in
another Member State , it shall submit a request to the
central body or competent authority.
Central body or the competent authority shall encourage
the use of VCF (Art. 17/4) only if the direct taking of
evidence is not contrary to fundamental principles of law
in its Member State.
Difference – in this case is applied law of Member State
which is requesting for direct taking of evidence
Can be only performed on a voluntary basis (without the
coercive measures)
Videoconference has double role – means of evidence and
method in taking of evidence
 If the VCF used as evidence - will be evaluated video or audio
recordings.
 Is this new means of proof or not?
 a) subject of ostensible evidence (Austria, German in the
initial period before the amendment of the Code of Civil
Procedure)
b) electronic documents (private or public); which status has
electronic documents in each Member State?
c) what is the probative value of each of these means of
evidence?
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GERMANY
Art. 128.a/1 CCP 2001.
With the consent of the
parties, the court may allow the
parties, their attorneys and
assistants at their request to be
present at another location
during a hearing, and there
perform procedural acts. The
hearing will be simultaneously
transmit, audio and video, to the
place where the parties,
attorneys and assistants are and
in the courtroom.
Problems: consent of the parties
and their request
VCF trail
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Art 128.a/1 CCP 2014.
The court may order the
parties, their attorneys and
assistants at their request or ex
officio to be present at another
location during a hearing, and
there perform procedural acts.
The hearing is at the same time
audio and video transfer to this
place and in the meeting room
New – court can order VCF
without consent of the parties
and ex officio
VCF trail
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Art. 128.a/2 CCP 2001
With the consent of the
parties, the court may order to
witness, expert or party to be
present at another location
during a hearing. The hearing is
at the same time audio and
video transfer to this place and
in the meeting room. If parties,
their attorneys and assistants of
parties referred to in paragraph
1 , sentence 1
are allowed to stay at a different
location, the hearing will be
transfered to this place.
VCF taking of evidence
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Art. 128.a/2 2014
On request the court may order
to witness, expert or party to be
present at another location
during a hearing. The hearing is
at the same time audio and
video transfer to this place and
in the meeting room. If parties,
their attorneys and assistants
parties referred to in paragraph
1, sentence 1
are allowed to stay at a different
location, the hearing willbe
transfered to this place.
New – court may order VCF
without consent of the parties
VCF taking of evidence
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§§ 289.a-289.b CCP – special provision for victim of crimes
and minors.
Court is able to limit the hearings topic or decide
completely against the hearing if the underage persons
well-being is endengered.
§ 277. CCP
Videoconference conveys a better personal impression
than a protocol of a questioning through mutual
assistance procedures.
2009. – 1 404 (cross border 130)
2013. – 4 134 (cross border 632)
IT- Reservation system - system for booking rooms
equipped with technical equipment for videoconference
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The Code of Civil Procedure does not contain specific legal provision for the
taking of evidence by videoconference
As a means of evidence – video recordings are subject to ostensible evidence
Electronic Document Act provides that the contents of electronic documents
including all forms of written text, data, pictures and drawings, maps, sound,
music, speech (Art. 4 No. 1) – are video recordings electronic documents?
In this case, this means of evidence have greater probative value then that of
subject to ostensible evidence
As the type of taking of evidence, videoconference is not possible in civil
procedure
If a national court or judges have no experience with the use of
videoconferencing technology- how they can apply demands of Regulation?
Videoconferencing is provided for explicitly in the Code of Criminal Procedure
(Art. 87/1)
As provided in this Act, hearings, evidentiary action or other action is recorded
with devices for audio-video or audio recording.
This provision has a much wider range of the hearing of witnesses.
Judges in criminal procedure have experience in apllying of videoconference.
Member States of the European Union have a very different
approach to the application of videoconferencing in civil
proceedings.
 Differences are reflected in the normative sense:
1. whether is videoconferencing in principle prescribed in national
law
2. the way in which is prescribed
 In the practical sense
1. whether are available technical means or not
2. have judges experience in the application of videoconferencing
Therefore, differences in national systems can be an obstacle for
the application of Regulation
 There is no uniformly approach in the sense of probative value of
videoconference or in relation to the legal requirements
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The first step that needs to be done is regulation on
videoconferencing in national law –application of VCF
without common normative framework is not usual
VCF should not be linked with the consent of all
participants in the case - it's the brakes to its application
criminal proceedings generally has greater experience in
the application of video-link from civil proceedings
experiences of criminal judges could be very valuable
insufficient and expensive technical equipment can be
better utilized with rational use - selecting the date and
place of the hearing in which it intends to apply
good national experiences are a precondition for the
application of videoconferencing in Regulation