The participation of the accused (convicted) person in the trial by video link, can it be considered by law as direct personal? The answer to the question contains the Criminal Procedure Code of Ukraine and this material.
We analyze
One of the innovations introduced in 2012 of the Criminal Procedure Code of Ukraine is the provision of an opportunity for participants in the trial to take part in the process via videoconference.
Article 336 (parts 1 and 2) of the CPC says that court proceedings can be held remotely (via videoconference) during broadcast from another room, including from outside the courthouse, provided that:
- The direct participation of a participant in criminal proceedings is impossible for health reasons (for other important reasons).
- This involvement is necessary to ensure the safety of individuals.
- A minor (minor) witness (victim) is being questioned.
- This measure will ensure the promptness of the trial.
- There are other reasons (grounds) determined by the court if necessary.
Importantly! Remote legal proceedings in the presence of the above grounds are carried out solely by the “approval” of the court in the form of a decision made on its initiative or at the request of the parties or other participants in the criminal process.
“Thus, remote participation of the accused (convicted person) in the trial from a place outside the courtroom (hall) by videoconference is, by law, direct (personal) participation in the trial.”
Nuances
If the parties or the victim object to the remote consideration, the court decides on such a consideration by an exclusively motivated decision in which it justifies such a measure.
The court does not have the right to decide whether the hearing will be conducted remotely if the accused located elsewhere objects to this.
In the analyzed proceedings, the court decided whether participation in the videoconference mode was equated with direct personal participation and whether, in this case, the rights of the accused or convicted were not violated, because the norms of the Code of Criminal Procedure stipulate for them the right to be present in person at the hearing of their cases.
The Cassation Court decided that there were no violations in such a situation! The criminal cassation in this case reviewed the decision of the District Court and the Court of Appeal regarding the refusal to reconsider the case on the basis of newly discovered circumstances.
The client’s defense attorney, his lawyer in the criminal case, believed that the local court had ignored the convict’s lawful demand for direct participation in the trial and unreasonably conducted it in video communication, to which the convicted person himself did not agree.
The cassation recognized the groundlessness of the arguments! The court’s decision was substantiated as follows:
- The petition to participate in the consideration of the case was and it was granted.
- The convict was transported from the place of execution of punishments to a pre-trial detention center, and then to a temporary detention center.
- In the latter, there are no conditions for keeping persons sentenced to life imprisonment.
- For this reason, the convict was not able to be physically present at the hearing.
Summary
The person involved in the analyzed case participated in the hearing from the remand prison, in the videoconference mode. The right of the court to observe the rights of persons in this way is enshrined in Part 2 of Art. 336 of the CPC. In this particular case, the rights of the convicted person were not violated. His participation in the process in a different format is equated by law to direct participation.
