It is surprising that in the 21st century courts have denied citizens the right to be questioned by videoconference without having to go to court, whether for health reasons, for protection or simply because of the economic damage it may cause to a person. However in general, the court cannot force you to appear in court. This right has been legally established already for several years and the Supreme Court has had to pass sentence on it.
For example, someone goes on holiday to Ibiza (Spain) and witnesses an accident or a crime there. As a witness, he could be called to testify in court in Ibiza, but he lives in Amsterdam. Can he be forced to come to court? Should a witness invest his money and time to comply with the unreasonable formalities of the judicial system? The answer is no, of course not.
But let us proceed step by step.
The Spanish law Orgánica del Poder judicial, art. 229.2 states the following:
- Statements, interrogations, testimonies, investigations, reports, ratification of expert reports and hearings will be carried out before a judge or court with the presence or intervention, as the case may be, of the parties and at a public hearing, except as provided by law.
But paragraph 3 of the same article expresses a reservation:
- These acts may be performed by means of a video conference or any other similar system that allows two-way and simultaneous visual and audio communication and visual, auditory and verbal interaction between two persons or groups of persons who are geographically distant from each other, always ensuring the possibility of contradiction and preserving the right of defence, if the judge or the court agrees.
If we analyse the first draft of the article in 1985 it contained only 2 sections in which video conferences were not mentioned for obvious reasons. In fact, the aforementioned paragraph 3 was added only in 2003 through the Ley Orgánica 13/2003, which reformed the Code of Criminal Procedure in the area of pre-trial detention.
Therefore this right exists since 2003 and is not a new right that suddenly arose after the pandemic. On the contrary, the pandemic has forced the courts to update their working methods as much as possible in a way that does not compromise justice.
Despite this, some courts deny this because the law allows them to do so with the last clause of paragraph 3, which says: “when the judge or the court so decides“.
This is why the Supreme Court has ruled on this right, because it is not an optional or discretionary power available to the judge or court, nor a mania of citizens, but an enforceable right that deserves protection.
According to the Criminal Chamber, the use of videoconferencing provides a legal equivalence to physical presence and guarantees the principle of publicity. The Chamber of the Court of Cassation confirmed this more than two years ago in judgment 331/2019 of 27 June.
Certainly, it is a statement that now takes on particular relevance due to the consequences of the Covid-19 pandemic, which had paralysed almost all activity in Spain over the last two years, including judicial activity. As a result, new technologies have emerged, such as the use of videoconferencing in professional activities. But this right has been legally established already for several years and the Supreme Court has had to pass sentence on it.
The legal reason for questioning someone by videoconference is indisputable. The judiciary must ensure that interrogations are conducted by these means, always respecting the principles of proximity and concentration.
What to do in cases where a judge denies you this specially protected right? Of course, the client always has the last word. As always, decisions cannot always be made in the same way, as it will depend on the specific case. In some cases, it is worth coming to court in person; for the client’s own sake and to avoid unnecessary delays. In other cases, the decision may be reversed. As the law stands, lawyers can appeal to protect their client’s right, which deserves protection, thus confirming the Supreme Court’s ruling.
Mª Dolores García Santos